A close-up look at NYC education policy, politics,and the people who have been, are now, or will be affected by acts of corruption and fraud. ATR CONNECT assists individuals who suddenly find themselves in the ATR ("Absent Teacher Reserve") pool and are the "new" rubber roomers, and re-assigned. The terms "rubber room" and "ATR" mean that you or any person has been targeted for removal from your job. A "Rubber Room" is not a place, but a process.

Grade-fixing is still in the curriculum at a high school in
Mayor de Blasio’s embattled “Renewal” program.

Former
principal Santiago Taveras was removed from DeWitt Clinton HS in The Bronx in
November after investigators found heimproperly
changed gradesand
retaliated against an assistant principal who refused to pass an undeserving
student.

Yet on the
heels of that scandal, complaints to the DOE have emerged that Taveras’
successor, Pierre Orbe, a 39-year-old first-time principal, pressured teachers
to fix grades.

Teachers allege
they were summoned individually to a “Fall Semester Final Grades Meeting”and
handed packets with an “agenda” and grade-changing forms. Teachers sat across a
table from Orbe, who expressed dissatisfaction with how they had calculated
final grades.

“He wanted to
coerce the teachers into changing grades instead of doing it himself,” a school
source told The Post. “He made it clear that if they didn’t comply, there would
be consequences. Eventually some teachers gave in because they couldn’t take it
anymore.”

A letter sent to Department of Education officials says Orbe
told a teacher to recalculate the final grades for four failing students,
insisting the lowest possible score in amarking periodbe 45 percent — even if the kid never
showed up.

“He told me tofill outa grade-change form and write down
‘miscalculation’ as the reason,” said the teacher. The teacher refused.

Another
teacher, who assured Orbe that his students “received the grades they earned,”
said the principal became “confrontational.”

Orbe questioned
the teacher’s “inability” to calculate an average, the teacher said. “The tone
of the meeting made me feel disrespected.”

The teacher did
not change the grades, noting that Orbe had already referred the students for
“credit recovery” —online coursesgiven to failing kids as a last
resort.

At least 12
students put in the quickie courses don’t qualify under DOE rules because their
attendance was below 66 percent, insiders said.

Now Clinton is
in the cross hairs of the “highest authorities” of the DOE, Orbe wrote in a
stern memo to staff.

“This issue is
on the radar of the DOE . . . This issue could be large and it won’t be this
principal who fails for this,” Orbe wrote. He warned that teachers will take
the blame if grades are “miscalculated” — even though he approved the changes.

Clinton, with
nearly 1,700 students, is one of the biggest
schools in the mayor’s Renewal program, which is pouring an extra $754 million
into 75 struggling campuses.

Taveras was
paid $198,000 last year, including a $25,000 bonus and overtime, the DOE said.
He was demoted to “educational administrator” in a Bronx office making
$149,826. Orbe, whose base salary is $148,658, previously was vice principal at
Talent Unlimited, a 500-student performing-arts school in Manhattan. Orbe did
not return messages.

The comments in this post are my opinion, as Editor of
Parentadvocates.org and NYC Rubber Room Reporter and other blogs.The facts are
the facts.

The facts of Peter Zucker's hearing known as 3020-a
arbitration:
1. See the full
decision.
Peter Zucker was found guilty at 3020-a labor Arbitration by
Arbitrator Richard Williams of neglect of duty; conduct unbecoming his position
or conduct prejudicial to the good order, efficiency, or discipline of the
service; insubordination; substantial cause rendering him unfit to perform
properly his obligations to the service.

2. Arbitrator Williams gave
Peter a penalty: (a) suffer a suspension without pay of four months; (b) suffer
an involuntary removal from any assignment whatsoever at PS 154X to an
assignment determined by the Department; and (c) that upon return from the four
month suspension without pay, that he is to take part in a formal remediation
program as determined by the Department.

3. Peter did not appeal this
penalty.

4. Peter hired Bryan Glass as his Attorney when he sued Michael
Agona and Principal Coviello among others.
(see Complaint)

5. Peter
made a settlement agreement where he received $20,000 (I imagine most of that
went to Bryan Glass).
See the Settlement
Agreement.

Peter Zucker is a blogger, and his blog is South Bronx
School. Most people who read this blog are surprised at the language used,
which tends to be raw and insulting.

Then Peter turned on me, a fellow
blogger and now former friend.
I am writing this to expose the alarming
mental state of Absent Teacher Reserve Peter Zucker and to suggest that anyone
working with him in the many schools he is rotating to as a substitute teacher
be careful when working with him or in conversation with him.

Peter no
longer seems to know truth from lies, and this could be dangerous not only to
the health, safety and welfare of the children he works with, but those staff
members who work alongside of him. At any moment you can be posted on his blog
with something that you never said or did. His so-called "crack team" is, of
course, he, himself, him. No one else.

Sadly, this is what Peter is all
about. He uses his own reality as a weapon. For example, he and I were talking
in May 2016 about matters of importance to teachers in NYC, and somehow the name
of Bryan Glass, his Attorney, came up. Peter threatened me that he would never
be friendly to me and would make sure I regretted writing anything about Bryan
Glass, anywhere. I said nothing.

In gratitude for 'agreeing' to do what
he demanded, by my not saying anything bad about Bryan, Peter crafted the
article below on May 15, 2016.
I have known Peter for many years, as his
post on his blog remembered:

"I first met Betsy Combier almost 10
years ago during my time in the RR during the time of Numb Nuts. I remember her
showing up every now and then, placing her stuff down on a desk, sitting down,
and watching a line form to see her as if people were lining up to get Mickey
Mantle's autograph.

Betsy at the time was working for the UFT. She was
the liaison, or something like that, for the people of the Rubber Room to the
outside world. She was the friendly face, or more importantly, she was the only
face that seemed to care.

With the changing of the guard at the UFT, soon
Betsy was not employed by them. She was now a free agent. In my opinion this was
a blessing for Betsy and the teachers she sought to help. Betsy was now a free
agent. There was no stopping her now.

Betsy along with her blogs, NYC
Rubber Room Reporter, and Parent Advocates, has been att the forefront of
removing the sheath back over the mess that the NYCDOE has created over the
years. Betsy has been, and still is, the leader in assuring those damaged by the
NYCDOE that they will be heard and that their rights will not be trampled
on.

I recall back in the summer of 2013 when I and several teachers in my
school had our careers trampled on. I contacted Betsy to meet with us and
without hesitation she did. We met at a diner on 2nd Ave and spent a couple of
hours not only soaking in her knowledge of what we can do, but more importantly,
having that sympathetic ear that we were missing for so long. This is what Betsy
is about.

Betsy is about someone who will be with you and advocate for
you from the very beginning to the very end. Betsy is about once her work is
done with you will be a friend for life. Someone that you can call day or night
when you have that feeling of helplessness and need someone that you can be
assured will be there for you.

Betsy fights for you. She fights for us.
Betsy is persistent, never gives up. When her path forward in fighting for a
teacher is blocked that does not stop her at all. She dusts herself off, rolls
her he sleeves and finds a new path to go down. Ceaselessly fighting and
advocating until she gets the results that she wants, or better,
demands.

There are many times that I called Betsy, especially in the last
3 years, in which I was in a panic or needed to here her knowledge about
something. At no time had she ever turned me away, not returned a phone call, or
was unable to help me.

I consider Betsy a true friend, a trusted friend.
I'm not the only one that does. There are many she as helped. Many she has
rescued from the abyss.

Betsy is a lifeline. When you are sinking, when
you feel desperate, when you feel alone in your fight there is no one better
than Betsy to have on your side.

Betsy has been there for many teachers
and I hope she will continue to be there for us for many years to come. You
can't go wrong with Betsy."

I was happy to see this, but never told
Peter that he had to write about me. That was his choice. Except that maybe he
thought that I would do whatever he told me to do or threatened me with, and
never speak badly about Bryan Glass.

His post has several facts, such as
I was the only one at the UFT who visited the rubber rooms in New York City on a
daily basis, talking to everyone. It is also a fact that I was the only person
at any of the locations, so UFT members would stand in line to chat with me. I
was a Special Representative for the UFT from 2007 to 2010.

On April 13,
2017 I was forced to write what my experiences with Bryan and Jordan Harlow have
been like. I will give some examples:

Bryan Glass asked me to train
Jordan in how to do 3020-a hearings, so I gladly brought 5 teachers who had been
charged with 3020-a to Bryan and Jordan for representation at the 3020-a with me
as the paralegal. I did not know that Bryan does not do 3020-a hearings anymore.
So Jordan did three hearings and all three teachers were terminated because
Jordan would not listen to any suggestions I made, and wanted to do the least
amount of work.

Then Bryan and Jordan called the remaining teachers into
their office at 100 Church Street, 8th floor, and convinced one teacher to
resign, and the other to take a very bad settlement deal. Bryan and Jordan told
both of the teachers that they would be terminated if they went through with the
hearing, and neither should tell me anything about what they were saying. Both
teachers called me and told me what Bryan and Jordan told them. I do not work
with the Glass/Harlow team at all any more.

Some other sad events to report about Bryan Glass:
1. In the Article 75 Appeals of Jeffrey Losak (Index #654452/2016) and James Geist ( Index #654135/2013), Bryan Glass and Jordan Harlow forgot to delete the social security numbers of either teacher, and Mr. Geist emailed me after I posted the arbitrator's decision from Bryan's e-file in the Supreme Court WITHOUT the social security #, that I had to immediately take down his SS# or he was reporting me to the New Jersey internet identity theft police for prosecution:

"to me James Geist 8/24/16

I have contacted the Passaic County Sheriffs Office and
spoken to the Internet Crimes Unit. If your PDF is not down with my SS
number, I will file charges for whatever I can. They will be
getting back to me soon."

But it was not my mistake, and I could not take off the SS#, Bryan and Jordan posted it in their public papers in the NYC Supreme Court for everyone in the world to see. I did not post the SS#.

2. In the Article 75 Appeals of Barry Selman (Index #654293/16) and Marla Eilenberg (Index #654780/16) Jordan Harlow did not file on time (Selman - filed after the 10-day statute of limitations, according to the Corporation Counsel and the Judge), or serve on time (Eilenberg - after the 15-day statute of limitations), and both cases were dismissed by the Judges assigned. Ridiculous! For an Appeal to be dismissed because of the error in serving/filing is absurd and unnecessary.

On or about May 18, 2016, a
client of Jordan's asked me to take her 3020-a case when she saw me at the
hearing office for these hearings, 100 Gold Street 3rd Floor in manhattan. I
told her that I could not take on her case, as her dates were the same as the
hearing I was there to do. I urged her to work with Jordan.

He did not
return the favor. Later that day his client called me, upset, and told me that
he told her never to speak with me, I was a horrible person and I wrote a
terrible blog and as I was not an Attorney, not to speak with me under any
circumstances. I wrote Bryan and Jordan a cease and desist letter. On or about
June 9, 2016 at the 100 Gold Street DOE office, the client fired Jordan, he
threw a bunch of her papers into her face and stormed out. She could not do the
hearing herself, and was terminated. There is more, but I will save the rest for
another post.

Peter then heard that I had written about Bryan and Jordan,
immediately had a temper tantrum which caused him to post the article he
originally posted on May 15, 2016 with a line through most of it. Most readers
cannot figure this out, because I did not tell anyone that Peter had threatened
me with personal destruction by him if I posted anything negative about Bryan
Glass (does it interfere with you getting Attorney referral fees?) .

But
that wasn't the end of his attack. Peter then posted 100% lies in this
post:A Teacher Puts His Faith in Betsy Combier, ridiculing
senior teacher Javier Escudero for hiring me to be his advocate at his 3020-a
after he fired Attorney Tom Ricotta of White,
Ricotta and Marks on or about February 23, 2015 in the middle of his
hearing. Javier saw me in the hall way of the old location for 3020-a hearings,
51-49 Chambers Street, and said "Are you Betsy Combier?" I said "Yes" and he
told me to please give him my telephone number. He called me that night and we
discussed my helping him. We started on March 9, 2015, and Javier spoke for
himself "pro se" with my support. He received a penalty of $7500 fine, but was
not terminated. We impressed the arbitrator. Javier did a great job!

(My comment to Anonymous, who accused me of obtaining a fine for Javier, and ridiculing that: First of all, I usually do not comment on anonymous posts. If someone can't own what they write they don't sign their name; anonymous means you want to say something derogatory but do not want to be held accountable. But I would like to add that Javier spoke as a pro se Respondent, and I assisted him in supporting his arguments with prior arbitrator decisions, procedures, etc. We were very happy with the fact Javier was not terminated, because by all accounts he is a phenomenal teacher, but he did appeal the fine. Second, compare the fine Javier got in his decision to the penalty Peter Zucker received, four months without pay. Peter used NYSUT. Thirdly, as you are throwing stones at me, why don't you, anonymous, assist teachers at 3020-a if they want to do their case pro se, and then let's compare the results. Ok?)

So
when I saw Peter's post (he sent it to me more than once) saying that I spoke to
J.E. about Bryan and Jordan being in bed with the DOE, this is a lie, Everything
is made up by Peter, who probably sent the anonymous comment to his own blog, so
he could make up that I said things which I did not say.

So of course I
contacted Javier, and this is his response:
"I don't know what this is about
but I have the most respect and I am thankful for the work you did for me.

Thank you
Javier Escudero"

Cease and desist, Peter. You should
try to be a responsible journalist and not deliberately lie on the
internet.
And remember, just as you can state your opinion, so can I. In my
opinion, you are way out of line.
Betsy Combier
Editor of
Parentadvocates.org

After months of protests by students and faculty, a new principal has been named for Townsend Harris High School: Brian Condon.

Condon is currently principal of the School for Tourism and Hospitality in the Bronx, a high school with a higher-than-average poverty rate that opened in 2012-13 and graduated its first class last year. Townsend Harris High School, located in Queens, is one of the city’s most elite screened schools, with a graduation rate of 100 percent.

Before becoming principal of Tourism and Hospitality, Condon worked as an English teacher and dean at Martin Van Buren High School in Queens. He will take the helm at Townsend Harris on May 1.

“I am excited to join the Townsend Harris community and meet with students, staff and families,” Condon said in a statement. “While it is bittersweet to be leaving Tourism and Hospitality, this is an exciting new chapter.”

Chalkbeat reported on the crisis at Townsend Harris in December and later profiled student leader Alex Chen, who helped lead the charge against Jahoda. She was accused of creating an uncomfortable atmosphere in the school, allegations that trailed her from her previous placement at Bronx High School of Science.

Sunday, April 16, 2017

ok, enough is enough. We have to get our New York State legislature to put a stop to the use of the Danielson rubric to charge teachers with criminal conduct if, during a 15-minute observation, there isn't a perfect teaching performance and if all the little - or big - student angels are not sitting in their seats glued to the lesson materials, learning everything.

Anyone who has ever read my blog, this one, or posts to my website Parentadvocates.org, know that I firmly believe there is something very wrong with the way teachers are observed, rated, and charged with 3020-a for incompetency (as well as misconduct, but that is another article).

Using the 15-minute informal observation to create a paper trail of incompetent teaching which are solely hearsay and/or opinions, is, in my opinion criminal and opens the DOE to lawsuits. The 15-minute observation is, as a helpful tool, ok, but DONT ALLOW A RATING!!!!!

The strange phenomenon I have followed all these years is the creation of so-called 'factual evidence' from an observation report written by a principal with malice towards the teacher (who is simply too pretty, too good at what they do, too outspoken, knows too much, too expensive, etc. to keep on the school budget) and "sees" incompetency in the 15-minute observation allowed in the Danielson Rubric. I've heard that even Charlotte Danielson herself is pretty upset with the use of the rubric in the manner that the DOE is using it:

We need to stop the rating of teachers after a 15-minute flyby. A teacher should be observed, and evaluated. But must be done according to fair rules and honorable intentions. I suggested in 2010 that the UFT set up a process of using video twice a year, in September/October and May/June to see exactly what a teacher's skill set is, in order to set up a tailored plan to improve the areas least efficient. We really do not need to criminalize a spanish teacher who does write lesson plans but cannot write in English when given a full year as a science teacher. Do we?

Principals say that if they saw it, it is a fact. And, as I've said and written here before, see below, when an Arbitrator believes that what the principal saw is the fact of the case, that's the problem with these hearings.

Kings County Supreme Court and the Second Department Appellate Division say, an observation has no facts and is simply an opinion. My very good friend Harvey Elentuck's case still controls this "fact": observations are opinions and have no data or statistics:

Thus no one may obtain observation reports under the Freedom of information Act (FOIA) nor are observations business records. So, DOE Attorneys, stop submitting these reports at 3020-a as facts, or as business records when you dont bring in the person who wrote it and want someone else to testify about the content. Yucky, very yucky.

Does the NYC Department of Education really believe that a principal will ask for any suspension, any time?

I have a bridge to sell you.

Principals work in constant fear that they will be cited for having a violent set of students and that they will be placed onto the VADIR list (Violent and Disruptive Incident Reporting list). The solution is to not suspend any student, anytime, or place disruptive kids into a SAVE Room for a couple of days. At Rushell White's out of control school JHS 226, I heard that the SAVE room has consistently about 40-70 students in it at one time.

Staff need to be vigilant because students know that they are the powers behind the throne. They aren't going anywhere. You are.

See my post about Eileen Ghastin, where the student who was going to beat her up was given, evidently, a 5-day in house principal's suspension for his threats:

"I have a bullet with your name on it" and he knew that the school administration was not going to do anything, so he called the police at the 83rd precinct and filed a complaint. Then the Department charged him with 3020-a charges, citing his endangering the student's safety and welfare.

I worked on D.S.'s 3020-a, and the Attorney working with me served the Sargeant at the 83rd precinct a subpoena to come in to testify. But Sargeant Ramattur would not come in. I was told he was "on a vacation" or "unavailable".

Something is wrong with this picture.

My suggestion is for any teacher: keep secretly recording everything that happens during the school day, transfer the recordings at night to your computer at home, keep a file.

Before 2015, principals only had to seek approval from the city for the most serious suspensions. But starting in April of that year, the city added an oversight mechanism: Requiring principals to get permission from the education department before suspending students in grades K-3, or a student in any grade for insubordination.

Some school leaders and union officials complained, saying the policy makes it harder to maintain order.

But how often does the city overrule a principal’s judgment?

In all, the education department rejected about 22 percent of suspension requests under those categories during the 2015-16 school year, the first full year under the new code. Officials rejected 453 of the 2,008 requests to suspend students for insubordination, or 23 percent. And they rejected about 20 percent of the 1,039 attempts to suspend students in grades K-3, or 31 percent if you include the more serious suspensions that already required approval.

“It is promising to see that there are rejections and that suspensions are not rubber-stamped by the Department of Education,” said Dawn Yuster, the school justice project director at Advocates for Children. “They’re using this as a way of showing schools they’re serious about the policy changes.”

The requirement that principals earn approval for certain suspensions came as part of a series of edits to the discipline code — championed by Mayor Bill de Blasio — designed to discourage their use and move schools toward less punitive approaches.

The number of total rejections (659) is tiny compared to the total number of principal suspensions issued last year (27,122). (Principals have long been required to clear more serious superintendent suspensions with the department; last year, schools issued 10,525 of them and were rejected 2,171 times.)

Still, in concert with the city’s shift away from suspensions more generally, the decision to require an extra layer of approval in certain cases may be having an effect. Overall, suspensions have fallen by roughly 30 percent under de Blasio’s watch, continuing a downward trend that began under his predecessor.

“There’s kind of an unwritten rule where schools know these suspensions aren’t going to be approved, so schools don’t put a whole lot of them through,” said Damon McCord, co-principal at the Metropolitan Expeditionary Learning School in Queens.

Officials have taken particular aim at suspensions for insubordination, one of the offenses that now requires approval. Advocates charge that its inclusion in the discipline code contributes to the disproportionate removal of students of color and those with disabilities from their classrooms — and its use has plummeted 75 percent over the past two school years. The city has also pledged to virtually eliminate suspensions for the city’s youngest students (that policy is expected to take effect later this month).

But the dramatic drop in suspensions has earned mixed reviews from some educators who say there has been a parallel dip in discipline. Ernest Logan, head of the city’s principals union, argues school leaders should be trusted with suspension decisions, as long as they’re following the discipline code.

“When the chancellor selects a principal, then you should give that principal the authority to run their schools,” Logan said in response to the rejection numbers. “Why do you have a principal there if you don’t accept their judgment?”

Lois Herrera, CEO of the education department’s Office of Safety and Youth Development, which oversees the suspension approval process, said the extra layer of oversight ensures students are only suspended if they are actually interfering with their peers’ educations. “We saw it as an opportunity to add that extra quality control and make sure if we had to suspend, it was appropriately used.”

Suspensions are more likely to approved if the misbehavior constitutes a pattern, interferes with instruction, or other alternatives have been exhausted, Herrera said, noting that forthcoming updates to the discipline code will “strengthen” the requirement that schools try other options first.

“If we say no [to a principal], it doesn’t mean we’re turning a blind eye to misbehavior,” Herrera said, because her office often helps schools find alternative approaches. Asked if principals could simply suspend students for similar infractions that don’t require approval, she said she there was no evidence of that in the data.

McCord, the Queens principal, said the education department rejected his attempt to suspend a student who repeatedly tried to skip afternoon classes. “We probably didn’t do a good enough job articulating the prior interventions we’d already done,” he said.

Friday, April 14, 2017

Teacher Gladys Sotomayor failed to show discrimination as a cause of action in her lawsuit against Principal Fred Walsh and AP Jeanette Smith, School of International Studies in Brooklyn. (U.S.D.C 2012):

"Plaintiff has put forward sufficient evidence to establish a prima facie case of discrimination for her claim of discriminatory observations, evaluations, and letters to file. While these actions do not rise to the level of a materially adverse employment action, they are more than merely "trivial, insubstantial, or petty......plaintiff cannot show that a hostile work environment was created "because of her race, age, or national origin. Her hostile work environment claims are dismissed....Since neither the more frequent observations nor the negative reviews of the plaintiff's work had any material consequences on the terms and conditions of Sotomayor's employment, they are not adverse employment actions......The actions taken were not materially adverse to her, even under the more liberal standard applied to retaliation claims......In view of the facts of this case, no reasonable juror could conclude that Sotomayor was a victim or discrimination."

862 F.Supp.2d 226 (2012)

Gladys SOTOMAYOR, Plaintiff,
v.
CITY OF NEW YORK, New York City Department of Education, Fred Walsh, and
Jeanette Smith, Defendants.

This is one of a growing number of cases where teachers are
subject to more frequent and intense classroom observation, checks, directions,
and suggestions in an attempt to raise the quality of teaching. 235*235 Whether the effect
here was improvement of teaching quality — or, as plaintiff claims, unnecessary
discriminatory and counterproductive stress on a devoted teacher — is not
decided. The educational policy involved and its execution have not violated
this teacher's rights under federal, New York state, or New York City law.

Beginning in the 2007-2008 school year, plaintiff Gladys
Sotomayor, a New York City public school teacher, among other allegedly adverse
actions, received increasingly frequent classroom observations, and was given
negative performance evaluations and adverse letters in her file, by her
supervisors, Principal Fred Walsh ("Walsh") and Assistant Principal
Jeanette Smith ("Smith"). Defendants insist that Sotomayor was an
underperforming teacher who needed this help, critique, and extra supervision.
Sotomayor, a Hispanic-American woman over fifty, claims that these actions were
the product of age, race, and national origin discrimination.

Plaintiff sues Walsh and Smith, as well as her employer, the New
York City Department of Education ("DOE") and the City of New York
("City"), alleging discrimination, retaliation, and hostile work
environment claims under Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e et seq.; the Age Discrimination
in Employment Act ("ADEA"), 29 U.S.C. 621 et seq.; Section
1983 of the Civil Rights Act of 1866 ("Section 1983"), 42 U.S.C. §
1983; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law
§ 290 et seq., and the New York City Human Rights Law
("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. See Compl.
¶¶ 42-118, Doc. Entry 1, July 26, 2010 ("Compl."). She also claims
that defendants retaliated against her for exercising her rights under the
Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. See Compl.
¶¶ 119-123.

Defendants move for summary judgment on various grounds. Their
motion is granted. The City is dismissed as an improper party. Sotomayor's
claims under federal, state, and city law against the remaining defendants are dismissed
as without legal basis. She was not treated differently from similarly situated
employees because of her age, race, or national origin.

II. Facts

A. Parties

Plaintiff, who identifies herself as a non-Caucasian Hispanic,
was born on September 6, 1957. See Compl. ¶ 22. She is a
resident of Brooklyn. Id. ¶ 15.

Defendant Fred Walsh was born on April 20, 1967. Defs.'
Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. C 31:11-12 (Dep.
of Fred Walsh), Doc. Entry 36, Feb. 29, 2012 ("Walsh Dep.").
Beginning in the fall of 2004, Walsh was the principal at the School of
International Studies in Brooklyn. Compl. ¶ 18.

Jeanette Smith was born on June 16, 1969. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. D 12:24 (Dep. of Jeanette
Smith), Doc. Entry 36, Feb. 29, 2012 ("Smith Dep."). During the
relevant period, she was an Assistant Principal at the School of International
Studies. Compl. ¶ 19.

Both Walsh and Smith are Caucasian. Id. ¶ 19.

All three individuals are employees of the DOE, an agency of the
City of New York. See Compl. ¶ 17.

B. Sotomayor's Initial Employment with the DOE

Plaintiff began working for the DOE in August 1999. Defs.'
Statement of Undisputed 236*236 Facts Pursuant to
Local Rule 56.1 Ex. B 43:23 (Dep. of Gladys Sotomayor), Doc. Entry 36, Feb. 29,
2012 ("Pl.'s Dep."). She was initially hired as a substitute second
grade teacher at P.S. 67. Id. 46:4-24.

In September 2002, Sotomayor transferred to the Secondary School
for Law, Research and Journalism, where she was assigned to teach sixth through
eighth grade Spanish. Id. 49:13-16, 51:3-5. An Observation
Report dated April 19, 2002 rated her lesson satisfactory overall, but
highlighted as areas of improvement the "timing and pacing" of the
lesson and the failure to "provide a multitude of varied activities so that
student may explore the concept in question," to "maintain a clean
area for students to work," and to display student work in the classroom.
Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. F (April
19, 2002 Observation Report), Doc. Entry 36, Feb. 29, 2012.

Plaintiff was "excessed" in the summer of 2003,
requiring her to find a new position in another school. Id. 52:19-53:10.
It is unclear from the record why she was excessed.

C. Initial Tenure at the School of
International Studies

In the fall of 2003, she began working at the School of
International Studies, teaching sixth grade students in an inclusion bridge
program. Id. 55:2-25. Sixth-to twelfth-grade students attend
the School of International Studies. Walsh Dep. 6:20-22.

When the bridge program was discontinued the following year,
Sotomayor was hired to teach middle school and high school Spanish beginning in
2004. Pl.'s Dep. 63:7-64:5. The interview team that hired her included
defendant Walsh, who was then an assistant principal. Id.

From the 2004-2005 to the 2006-2007 school year, Sotomayor
taught middle school and high school Spanish. Id. at 63:2-4;
70:10-12; 74:24-75:2. In the 2006-2007 school year, plaintiff was also assigned
to the SAVE room, the designated classroom for students who have been removed
from their classrooms for disciplinary infractions or given an in-school
suspension. Pl.'s Dep. 74:24-75:2.

In this period, Walsh observed the plaintiff approximately once
per year, and took the following actions:

• In April 2005, Walsh rated her lesson as
overall satisfactory, but recommended that plaintiff needed to "take a
more pro-active approach to classroom and time management" and to
"work to create a more structured and productive classroom culture."
Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. I (Apr.
11, 2005 Report on Observation), Doc. Entry 36, Feb. 29, 2012.

• In November 2006, Walsh noted that the
plaintiff was "inconsistent" in ensuring that the lesson's objective
was "explicitly stated or referred to by the teacher" and in
maintaining the classroom environment in proper fashion. He also noted that her
lesson did not have closure and did not take into account students' varied
learning styles, and that no student work was on display. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. L (Nov. 21, 2006 Report on
Observation), Doc. Entry 36, Feb. 29, 2012.

For the 2007-2008 school year, Sotomayor was assigned to teach
middle school and high school Spanish and to monitor the SAVE room. She
indicates that the problems with Walsh and Smith began that year. See Pl.'s
Dep. 135:5-7.

1. SLT Meeting

On November 1, 2007, plaintiff attended a meeting of the School
Leadership Team (SLT) as a substitute for her union leader; there, she became
upset and distraught. Pl.'s Dep. 116:8, 119:3-12. In a letter to file dated
November 16, 2007, Walsh observed that she had "arrived late with a strong
odor of alcohol on [her] breath; [she] frequently interrupted the meeting with
unrelated issues; [her] words were slurred and [she] had an antagonistic and
confrontational ma[nn]er." Defs.' Statement of Undisputed Facts Pursuant
to Local Rule 56.1 Ex. Q (Nov. 16, 2007 Letter), Doc. Entry 36, Feb. 29, 2012.
He noted that these observations were echoed by letters he received from all of
the adult members of the SLT, and he concluded that her conduct was
inappropriate and unprofessional. Id.

In her written response, Sotomayor explained that she was
stressed at the time of the SLT meeting. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. O (Dec. 12, 2007 Letter), Doc. Entry 36, Feb.
29, 2012, She denied being under the influence of any substance. Id.

While Walsh wrote a letter to file regarding plaintiff's
behavior at the SLT meeting, he allegedly resolved similar issues with younger
Caucasian teachers informally, without such letters. Id. 124:13-125:25;
130:2-131:6. These issues involved infractions such as "being late, taking
the day off if you party too much on Saint Patty's day, or if you decide to
take a trip somewhere." Id. 125:18:21.

2. SAVE Room Incident

On December 12, 2007, plaintiff was supervising four students in
the SAVE room who had been involved in a fight between Arab and
African-American students. When Walsh entered the room, he noticed that several
students were listening to their iPods through headphones in violation of
school policy. Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1
Ex. R (Dec. 17, 2007 Letter), Doc. Entry 36, Feb. 29, 2012. Some were not
engaged in academic activities as required by SAVE room procedures. Id. Walsh
intervened, removing several students from the room, confiscating their iPods,
and talking to them about school rules. Id. Plaintiff
testified that defendant Walsh was "very ... menacing towards the
boys" during the incident. Pl.'s Dep. 113:10.

238*238 Sotomayor reacted
in a January 18, 2008 letter, explaining that she had told students not to
listen to their iPods and that students were not engaged in academic work
because they were airing their feelings about the fight. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. S (Jan. 18, 2008 Letter), Doc.
Entry 36, Feb. 29, 2012.

Plaintiff believes that Walsh's actions were discriminatory
because "if I was a white male, I don't think he would have gone in there
and barged right in." Pl.'s Dep. 115:9-10.

When other white teachers have covered the
SAVE room, he is more warm, convivial. He doesn't get into the faces of the
students. It's just a different demeanor and approach.

Beginning in the 2007-2008 school year, Sotomayor began
receiving more frequent classroom observations from Walsh, as well as
unsatisfactory ratings following those observations.

• In December 2007, Walsh noted that, although
plaintiff had a "pleasant rapport with students" and "the
majority of students worked on the packet for the duration of the period,"
the quality of her instruction needed improvement. He also stated that she
needed to hold students accountable to a higher standard, and to greet them as
they entered the classroom. Defs.' Statement of Undisputed Facts Pursuant to
Local Rule 56.1 Ex. N (Dec. 21, 2007 Report on Observation), Doc. Entry 36,
Feb. 29, 2012.

• In the spring of 2008, Walsh conducted
several informal observations of plaintiff's classroom. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. T (Apr. 9, 2008 Letter), Doc.
Entry 36, Feb. 29, 2012. After discussing his observations with Sotomayor, he
memorialized them in an April 9, 2008 letter. He noted that Sotomayor was late
to class on two occasions; that she was unable to provide lesson plans; that
she did not acknowledge or record student tardiness; and that she did not
ensure that students were on task during the classroom period. Id. He
particularly faulted her "failure to plan meaningful, rigorous, and paced
lessons." Id. He reminded plaintiff that she should
"arrive to class before the first bell rings, to set up [her] materials,
greet [her] students at the door and set a positive tone and high
expectation[s] for the class." Id.

4. Tentative Class Assignments for 2008-2009
School Year

In April 2008, teachers at the School for International Studies
were asked to rank three choices of which subjects they wished to teach in the
upcoming school year. On her preference sheet, plaintiff listed only her top
choice, high school Spanish. Defs.' Statement of Undisputed Facts Pursuant to
Local Rule 56.1 Ex. V (2008-2009 Preference Sheet), Doc. Entry 36, Feb. 29,
2012. She was tentatively assigned to the classes she requested. Defs.'
Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. W (Tentative
Assignment), Doc. Entry 36, Feb. 29, 2012.

5. First FMLA Leave

In June 2008, Sotomayor learned that her father had been
diagnosed with cancer. Pl.'s Dep. 196:1-9, 197:21-24. She requested 239*239 family medical
leave in order to care for her father. Id. 197:5-7. It was
granted. Id. 200:23-201:1.

E. 2008-2009 School Year

1. Change in Class Assignment

On June 25, 2008, approximately one week after Sotomayor
requested FMLA leave, Walsh changed her tentative class assignment for the
2008-2009 school year. Rather than teaching high school Spanish exclusively,
plaintiff was assigned to teach high school Spanish 1, eight grade Spanish, and
sixth grade International Studies, and to preside at the SAVE room. Defs.'
Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. X (June 25, 2008
Emails), Doc. Entry 36, Feb. 29, 2012. When plaintiff asked why her preference
had been changes, Walsh explained that it was required by the needs of the
school. Id. Defendants claim the change was made due to
budgetary constraints and the licenses which plaintiff held. See id.; Walsh
Dep. 171:22-172:12.

Plaintiff returned to work at the beginning of the new school
year in September 2008. Pl.'s Dep. 201:2-5. In the year that followed,
plaintiff continued to be observed more frequently than in years past.

• At her request, plaintiff was formally
observed on November 17. The lesson was rated satisfactory, although Smith
noted several areas for improvement, including improving the pacing of her
lesson and better utilizing class time. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. DD (Dec. 1, 2008 Observation Report), Doc.
Entry 36, Feb. 29, 2012.

As a result of these observations, Smith arranged to meet with
plaintiff weekly to go over her lesson plans and unit outlines. Id. Sotomayor
also met with Marci Mann, an Instructional Specialist from the Community
Learning Support Organization, on several occasions. Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. EE (Dec. 20, 2008 Letter),
Doc. Entry 36, Feb. 29, 2012; Defs.' Statement of Undisputed Facts Pursuant to
Local Rule 56.1 Ex. FF (Log of Assistance), Doc. Entry 36, Feb. 29, 2012.
Plaintiff does not 240*240 consider her
meetings with the Instructional Specialist to constitute professional
development, since many other teachers were present during the sessions. Pl.'s
Dep. 293-94.

Sotomayor and Smith had several additional discussions regarding
the absence of substitute lesson plans.

• On March 19th, Sotomayor was absent and had
not left copies of substitute lesson plans for her International Studies class,
as required by the faculty handbook. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. JJ (Mar. 23 and Mar. 31 Letters RE: Substitute
Work), Doc. Entry 36, Feb. 29, 2012. Smith advised plaintiff that she had
scheduled a meeting for March 25th to discuss this deficiency, and that,
because the meeting could lead to disciplinary action, plaintiff could bring a
union representative. Id. Plaintiff responded by letter that
"there was plenty of work available for my students on top of a desk next
to the computers. In addition, there's additional work that subs can draw from
in the event more is needed." Id. She disputed whether
leaving substitute work was part of her contract or could subject her to
disciplinary action. Id.

Following the meeting, Smith "conclude[d]
that [plaintiff] failed to follow the established procedure for submitting 3
substitute lesson plans ... as outlined in the faculty handbook." Id. Sotomayor
agreed to submit plans no later than April 3rd. Id. On April
2nd, Sotomayor submitted a letter disputing Smith's characterization of events,
stating that they had established at the meeting that Smith "had
additional plans (6th grade work) on file and that you found other plans
available in my classroom pursuant to school policy." Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. KK (Apr. 2, 2009 Letter), Doc.
Entry 36, Feb. 29, 2012. She asked that Smith's letter memorializing the April
25, 2009 meeting be withdrawn from her file. See also Pl.'s
Dep. 147:14-149:2.

• On May 8th, Smith notified plaintiff that
all of the lesson plans that were on file had been used by previous absences
and the stock needed to be replenished. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. LL (May 8, 2009 Email), Doc. Entry 36, Feb. 29,
2012.

Plaintiff believes that Smith was discriminating against her by
raising this issue, since she has substituted for other teachers who had not
left lesson plans and she is not aware of other teachers who received similar
letters. Pl.'s Dep. 149:18-152:11.

Plaintiff was also formally and informally observed by Walsh:

• On February 3rd, the first day of the new
semester, Walsh walked through the school briefly observing all of his high
school classes. Defs.' Statement of Undisputed Facts Pursuant to Local Rule
56.1 Ex. HH (Emails RE: Spring Term), Doc. Entry 36, Feb. 29, 2012. When he
dropped by plaintiff's classroom twenty minutes into the period, he saw
students still wearing their coats with their book bags on their backs. Id. None
of these students were actively participating in classwork. Id.

• On March 5th, Walsh formally observed the
plaintiff. He met with her the following day to discuss the lesson, which he
considered to be unsatisfactory. Defs.' Statement of Undisputed Facts Pursuant
to Local Rule 56.1 Ex. II (Mar. 9, 2009 Observation 241*241 Report), Doc. Entry
36, Feb. 29, 2012. His criticisms were similar to previous observations, citing
her failure to properly pace the lesson and failure to engage her students. Id. He
suggested techniques for improvement. Id.

• On April 29th, Smith again formally observed
the plaintiff and concluded that her lesson was unsatisfactory. Defs.'
Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. MM (May 8, 2009
Observation Report), Doc. Entry 36, Feb. 29, 2012. Many of the criticisms and
recommendations were similar to those from past observations. Id.

By a letter dated Friday, May 15th, Sotomayor was advised that
Instructional Specialist Mann would conduct a formal observation of her fifth
period class. Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1
Ex. OO (May 15, 2009 Letter), Doc. Entry 36, Feb. 29, 2012. A pre-observation
conference would be conducted the same day during second period. Id. While
there is no required notice period prior to conducting a formal observation, it
is said by defendants to be unusual to have a pre-observation meeting on the
same day as the observation itself. Walsh Dep. 125:4-19, 186:22-187:5.
According to Walsh, Mann was brought in as the Superintendent's designee and
outsider to observe the plaintiff with a neutral set of eyes because Walsh had
reported that Sotomayor was at risk of an unsatisfactory rating. Id. 191:3-11;
195:13-25. Sotomayor did not see the letter until she arrived at work on
Monday, May 18th. Pl.'s Dep. 205:7-14.

After observing plaintiff's lesson, Mann noted that, while there
were some improvements compared to previous lessons she had observed Sotomayor
teach, the lesson was overall unsatisfactory. Defs.' Statement of Undisputed
Facts Pursuant to Local Rule 56.1 Ex. PP (May 18, 2009 Observation Report),
Doc. Entry 36, Feb. 29, 2012. Mann's report echoed many of Walsh and Smith's
previous criticisms and suggestions for improvement, including that she needed
to work on her pacing and improve the learning environment by using visual aids
to engage the students. Id.

3. Concerns About Record Keeping

In a Friday, May 15th letter, Walsh asked Sotomayor to meet with
him the following Tuesday, May 19th, to discuss grading and record keeping for
her students. Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1
Ex. NN (May 15, 2009 Letter), Doc. Entry 36, Feb. 29, 2012. In particular, he
was concerned that one of her students had failed all classes except for
plaintiff's class, despite poor attendance. Walsh Dep. 197:24-198:14. This meeting
never took place due to Sotomayor's FMLA leave of absence, which is discussed
below. Pl.'s Dep. 205:5-7. Plaintiff believes that Walsh's inquiry was another
form of intimidation. Id. 211.

Ms. Sotomayor was absent for the last 6 days
of the school year 2007-2008 regarding her father's illness. The total of her
absences result in 11 days.

On May 18th she informed me that as of May
19th, she had to take a leave of absence to take care of her terminally ill
father. She would be returning for the start of the school year 2009.

Ms. Sotomayor is at risk of an Unsatisfactory rating
due to instructional incompetence. It is my understanding that by taking a LOA,
her "U" rating is automatically changed to a "C" rating.

Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1
Ex. RR (May 28, 2009 Letter), Doc. Entry 36, Feb. 29, 2012. Plaintiff disputes
that this is the "real" version of the letter, because another
version of the letter which omits the reference to her rating was uncovered in
discovery. Pl.'s Decl. in Opp. Ex. 6 (May 28, 2009 Letter), Doc. Entry 44, Apr.
20, 2012.

F. 2009-2010 School Year

When plaintiff returned to work in September 2009, she initially
taught high school Spanish and middle school English as a Second Language (ESL).
Pl.'s Dep. 78:6-18. Although she was supposed to begin teaching a Regents'
preparation class in the second semester, at the last minute, her class was
changed to Essay Writing for middle school ESL Learners. Id. 78:15-80:15.
At least two other teachers — one a Caucasian male, the other a Haitian female
— were similarly assigned classes with little notice. Id. 81:12-83:4.
Plaintiff does not know the ages of either of these teachers.

Other than receiving teaching assignments that were not her
preference, Sotomayor does not allege that she was discriminated or retaliated
against during the 2009-2010 school year. She received a satisfactory rating on
her Annual Performance Evaluation that year. Id. 263:16-18.

G. 2010-2011 School Year

1. Class Assignment

During the 2010-2011 school year, plaintiff was assigned to
teach high school Spanish, middle school ESL, and ESL test coordination. Pl.'s
Dep. 83:14-19.

2. Classroom Observations

Defendant Walsh again conducted several formal and informal
observations of the plaintiff:

• On December 2nd, Walsh determined that
plaintiff's performance was unsatisfactory following an observation of her
second and third period classes. Defs.' Statement of Undisputed Facts Pursuant
to Local Rule 56.1 Ex. XX (Dec. 2, 2010 Observation Report), Doc. Entry 36,
Feb. 29, 2012. He criticized the lack of structure in her lesson, as well as
her failure to manage the classroom effectively.

Plaintiff alleges that the "observation
was unfair and factually false and occurred on the day after a possible bedbug
infestation was discovered in plaintiff's classroom and during a time that the
students were emotionally upset as a result of preparing for midterms."
Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. UU (Pl.'s
Resp. to Defs.' Interrogatories), Doc. Entry 36, Feb. 29, 2012 ("Pl.'s
Resp. to Defs.' Interrogatories"); Defs.' 243*243 Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. YY (Dec. 6, 2010 Email), Doc.
Entry 36, Feb. 29, 2012.

• On December 21st following a formal
observation, Walsh again concluded that plaintiff's lesson was unsatisfactory:
the lesson was poorly planned, and she had failed to implement his suggestions
following his previous observation. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. ZZ (Jan. 3, 2011 Observation Report), Doc.
Entry 36, Feb. 29, 2012.

Plaintiff initially claimed that, during the
observation, Walsh "was very confrontational towards [her] and the
students displayed shock that defendant Walsh would, in their presence, treat
plaintiff in such a menacing and threatening manner." Pl.'s Resp. to
Defs.' Interrogatories. She later clarified that "it wasn't so much as he
got into my face, it was surprising that he came in on that day [December 21,
2010], because it was a day the kids would probably have been agitated. We had
a random scanning conducted that week, right before the holiday. Oddly enough,
one of the kids was screaming in the halls, they felt violated because they had
all of their electronic devices taken." Pl.'s Dep. 190:10-20.

• On February 17th, after escorting two late
students to Sotomayor's class, Walsh conducted another informal observation.
Defs.' Statement of Undisputed Facts Pursuant to Local Rule 56.1 Ex. AAA (Feb.
18, 2011 Observation Report), Doc. Entry 36, Feb. 29, 2012. He observed that
approximately half of her students were not engaged in any work and that she
was not keeping records of lateness or attendance. Id. She
could not provide him with a lesson plan when asked. Id. He
concluded that her lesson was unsatisfactory.

Id.

Plaintiff claims that, during the observation,
Walsh was "disruptive, abusive, and acted in a way to undermine the
learning process." Pl.'s Resp. to Defs.' Interrogatories 8.

Assistant Principal Judith Willoughby, who is not a party to
this action, also negatively critiqued plaintiff's performance:

• On March 30th, Willoughby conducted a formal
observation of Sotomayor. Although she rated the lesson as satisfactory, she
listed several areas of improvement, such as keeping her classroom and
materials cleaner and better organized. Defs.' Statement of Undisputed Facts
Pursuant to Local Rule 56.1 Ex. BBB (Mar. 30, 2011 Observation Report), Doc.
Entry 36, Feb. 29, 2012.

Plaintiff alleges that she was not paid for preparation periods
on two occasions in the spring of 2011. Pl.'s Resp. to Defs.' Interrogatories
8. During that semester, 244*244 plaintiff chose to
use the period scheduled as her professional period for ESL Administration,
Period 1, as her preparation period, and to use her scheduled preparation
period, Period 4, as her professional period. Pl. Dep. 240:9-243:4. After she
was assigned to conduct practice test administration for ESL students on two
occasions during Period 1, Sotomayor filed a grievance, alleging she was
"not being paid for prep periods." Id. The grievance
was denied because the period during which she was assigned to administer the
tests was her scheduled professional period, not a prep period. Id. Her
UFT representative agreed with Walsh that plaintiff was not entitled to be paid
for administering practice tests during her scheduled professional period. Id.

H. 2011-2012 School Year

1. Initial Class Assignment

By a memorandum dated June 24th, 2011, Sotomayor was initially
advised that her tentative assignment for the 2011-2012 school year would be
teaching sixth grade science and seventh grade social studies. Defs.' Statement
of Undisputed Facts Pursuant to Local Rule 56.1 Ex. FFF (June 24, 2011 Mem.),
Doc. Entry 36, Feb. 29, 2012.

On June 27th, she filed a grievance on the grounds that her
assignment required "excessive preparation." Defs.' Statement of
Undisputed Facts Pursuant to Local Rule 56.1 Ex. GGG (June 27, 2011 Step I
Grievance), Doc. Entry 36, Feb. 29, 2012.

2. Plaintiff Initially Excessed

On June 28th, plaintiff was notified that she was being excessed
from the school. Defs.' Statement of Undisputed Facts Pursuant to Local Rule
56.1 Ex. HHH (June 28, 2011 Excess Letter), Doc. Entry 36, Feb. 29, 2012.
According to defendant Walsh, teachers are excessed when a budgetary shortfall
requires a principal to go through the school's table of organization to look
for positions which lack funding. Walsh Dep. 249:12-16. Sotomayor was set to be
excessed because he believed that there was insufficient money to pay all of
the teachers on his staff. Id. 249:12-253:13. Sotomayor in
particular was chosen, Walsh contends, because of the needs of the school.
While plaintiff has a Common Branch License to teach pre-kindergarten to sixth
grade and an Initial Spanish License, she has never received a permanent Spanish
license. Pl.'s Dep. 19:17-22:11. Walsh believed that he needed to replace a
common branch licensed teacher with a licensed ESL teacher. Walsh Dep.
249:12-253:13. She was the only teacher scheduled to be excessed that year. Id. 250:6-7.

In late June 2011, Walsh was informed by the human resources
person in the school's network that it was not necessary to excess a teacher. Id. 249:20-251:20.
He immediately called Sotomayor to let her know that she could return to the
School for International Studies for the 2011-2012 school year. Id.

3. Plaintiff's Assignments for the 2011-2012
Year

When Sotomayor returned to the school in the fall of 2011, she
was assigned to teach sixth and seventh grade Social Studies and Advanced High
School ESL. Pl. Dep. 109:5-8. She has not filed a grievance regarding this
assignment.

Plaintiff was assigned to teach in Room 117. Id. 265:16-18.
She complains that this room assignment is undesirable because it had
"become a dumping ground for faculty who were getting rid of their stuff
and the classroom contained old or broken desks. Id. 265:19-266:16.
Although defendant Smith said that she would remove these objects from
plaintiff's 245*245 classroom, she
apparently never did. Id. 226:17-22.

4. Loss of "Per Session" Position

She also claims that she lost an opportunity for a "per
session" position, which is a job performed by teachers before or after
school hours, such as supervising or leading extracurricular activities or
offering extra academic help. Id. 243:19-251:7. Plaintiff held
per session positions continuously from the 2006-2007 school year to the
2010-2011 school year. Id. Most of these positions were for
conducting an afterschool ESL program. Id. At the time of
Sotomayor's deposition, she did not have a "per session" position for
the 2011-2012 school year, because the ESL afterschool program had not yet
started. Id. 247:16-25. Other extracurricular activities, such
as sports programs, had begun. Id. Plaintiff believes that the
delay in the launch of the ESL afterschool program is the result of
discrimination. Id. 249:17-25.

On January 9, 2012 — after plaintiff's deposition in this case
was taken — a "per session" vacancy notice was posted for a teacher
to conduct an afterschool program for English Language Learners. Decl. of Fred
Walsh ¶ 12, Doc. Entry 47, May 11, 2012 ("Walsh Decl."). Sotomayor
did not apply for the position. Id. ¶ 13. She has never been
denied the opportunity to work a "per session" job that she has
applied for. Pl. Dep. 251:4-7.

I. Current Employment

At the time of the hearing, Sotomayor was still employed at the
School of International Studies. See Tr. of Hr'g, May 15,
2012.

J. Evidence of Animus

1. School Composition

Since Walsh became principal, the number of teachers at the
school fluctuated between thirty-two and forty. Walsh Dep. Id. 66:18-16.
Most of the teachers at the school are Caucasian. Id. 74:19-23.
During his tenure, there have been at least nine faculty members of Hispanic
national origin and at least seven African-American faculty members. Id. 69-72;
69:24-70:20. Most of the teachers are between thirty and forty years old. Id. 79:21-23.
Six or seven teachers are more than forty years old. Id. 77:24-25.

2. Differential Treatment of Plaintiff

In addition to the facts outlined above, plaintiff alleges that
she was discriminated against because:

• Her room assignments were changed
frequently, and "that did not happen with the white staff." Pl. Dep.
136:14-16.

• She has historically received a
disproportionate number of at-risk students with special needs compared to the
other Spanish teacher. Id. 85:21-86:5. The other teacher is in
her early 30s. Id. 89:12-13.

• She was subjected to multiple observations
each school year. Most tenured teachers received only two formal observations
during an average school year. Walsh Dep. 124:22-24.

Walsh admits that underperforming teachers
receive more frequent observations, and that he considered Sotomayor to be
underperforming. Id. 117:9-15.

• She received undesirable classroom
assignments. No other teachers shared classrooms for two consecutive years. Pl.
Dep. 106:16-23.

No other teacher has applied for FMLA leave. Walsh Dep.
216:6:22.

3. Discriminatory Comments

Plaintiff admits that Walsh never made any discriminatory or
derogatory statements to her or other staff. She contends, 246*246 however, that he
has made such statements regarding students, "particularly about the type
of clientele they wanted to attract." Pl.'s Dep. 138:3-7. These comments
included:

• Walsh wanted to attract "higher
performing students. Students that not necessarily are English language
learners." Id. 138:9-11. According to plaintiff, the
"types of students he wishes to attract are from middle class and upper
middle class not necessarily the students that are from other ethnicities who
reside in the community, primarily the Arabic-speaking community and the
children who come from the various housing projects." Id. 273:1-7.
Sotomayor also claims that she observed Walsh reject minority students who
attempted to register at the school, even though it was under capacity. Id. 274:9-275:3.

• Following a bedbug infestation, Walsh
"implied the kids don't clean up after themselves, they're not washing,
they're wearing their clothes more than once. The students themselves felt they
were being discriminated against, that he was being prejudicial that they
wouldn't wash." Id. 276:12-17.

Plaintiff believes these statements are discriminatory because
the current student population is "predominately Hispanic, predominately
African American, and a huge percentage of the English language learners are
from the community who are Arab speaking." Id. 138:21-139:1.

While Smith never made any discriminatory or derogatory
statements towards her or other staff, Sotomayor claims that Smith has made
such statements regarding students. Id. 165:1-3. Specifically,
in reference to "a couple of newly arrived Arab girls" who had been
roaming the halls without being sanctioned, Smith said, "You know how
these girls are. They think they can do whatever they want." Id. 165:14-19.
Plaintiff also claims that Smith spoke to her differently than Smith spoke to
other teachers. Smith allegedly addressed Sotomayor in a condescending tone. Id. 169:5-6.

[Her] communication style is not warm and
professional. It is stern, adversarial and curt. I would see her engage with
the other faculty members in the school and that was a totally different
response.

Id. 160:25-161:3.
Smith is claimed to be warmer and more professional towards men. Id. 163:16-18.

4. Differential Treatment of Others

Plaintiff claims that other older and/or non-Caucasian tenured
teachers were treated similarly to plaintiff, while Caucasian and younger
teachers were treated more favorably. She alleges:

• Walsh and Smith "targeted" other
"faculty of color" by making a series of "surprise, drop by
observations." Id. 140:14-141:18. Plaintiff claims that
Walsh did not make similar informal observations of younger Caucasian teachers. Id. 135:1-4.
She admits, however, that only one of the other Hispanic faculty members that
she could remember being on staff since Walsh became principle was subject to
the same "administrative strategies" of informal observations and
negative write-ups. Id. 253:9-258:23.

• Other than the plaintiff, he issued
unsatisfactory formal observation reports only on underperforming teachers. Id. 162:25-163:15.
All of 247*247 the tenured
teachers who received these reports were older and/or non-Caucasian. Id.

• Walsh has given six tenured teachers
unsatisfactory year end ratings during his tenure, all of whom were older
and/or non-Caucasian. Id. 226:16-227:2.

• Walsh identified two tenured teachers other
than the plaintiff who have been underperforming at one time or another. Id. 120:8-122:23.
One is an African-American woman who is approximately thirty years old. Id. The
other is a Middle Eastern man in his mid-fifties or sixties. Id. He
did not identify any tenured younger Caucasian teachers as underperforming. Id.

Walsh has since stated that he was mistaken at
his deposition, and that the male teacher identified was not given an
unsatisfactory rating. Walsh Decl. ¶¶ 10-11.

• In addition to plaintiff, only older and/or
non-Caucasian teachers are listed in the log of assistance, which
"documents any professional development meetings" with "teachers
who have a demonstrated pattern of incompetence." Walsh Dep.
227:12-229:15.

• Other than the plaintiff, Walsh could recall
only two other tenured teachers who received at least two letters to file. Both
were African-American women he considered to be underperforming. Id. 144.

• Walsh sought to dismiss Clarissa Clay, an
African-American teacher, after rating Walsh found that two tenured teachers
who were approximately sixty-five years old had consistently underperformed for
two years in a row. Id. 96:5-25. One teacher retired; the
other was assigned elsewhere. Id.

• her performance unsatisfactory for two
consecutive years. Walsh Dep. 33:98-34:2. At a formal termination proceeding,
seventeen of the nineteen charges of incompetence against Clay were sustained. Id. 33:16-19.
Clay was required to pay a fine and attend remedial coursework. Id.

• Walsh "tends to hire white men, young
women, young white women." Pl. Dep. 75:4-6. She did not point to any
specific instances in which an older or non-Caucasian teacher was replaced by a
younger and/or white teacher.

Defendants note several instances in which teachers who were
Caucasian were treated similarly to the plaintiff:

• A Caucasian female teacher under 40 years
old received multiple disciplinary letters to file in the course of a school
year. Walsh Dep. 149:7-17.

• A Caucasian male teacher under 40 years old
received a "U" (unsatisfactory) rating on his Annual Performance
Evaluation for the 2009-2010 school year. Walsh Decl. ¶ 9.

• For the 2008-2009 school year, plaintiff was
the only pedagogical employee who received a "U" rating. See Walsh
Decl. Ex. A (Chart of Ratings for 2008-2009 School Year). All sixteen of the
other non-Caucasians and all fourteen of the other "older" pedagogues
received satisfactory ratings that year. Id.

• For 2009-2010 school year, two pedagogical
employees received "U" ratings: a Caucasian teacher under 248*248 40 years and a
Caucasian teacher over 40 years old. See Walsh Decl. Ex. B
(Chart of Ratings for 2009-2010 School Year). All fourteen non-Caucasians and
fifteen of the sixteen "older" pedagogues (including plaintiff)
received satisfactory ratings that year.

• For the 2010-2011 school year, two pedagogical
employees received "U" ratings: an Arabic teacher over 40 years old
and a Caucasian teacher over 40 years old. Walsh Decl. Ex. C (Chart of Ratings
for 2010-2011 School Year). Twelve of the thirteen non-Caucasians and fifteen
of the seventeen "older" pedagogues (including plaintiff) received
satisfactory year end ratings for the 2010-2011 school year.

III. Procedural History

On September 8, 2009, plaintiff filed a written charge of
discrimination with the United States Equal Employment Opportunity Commission
("EEOC"). Compl. ¶ 9. She commenced the instant action on July 26,
2010.

New York law provides for a shorter statute of limitations for
claims against schools, school districts, and boards of education. N.Y. Educ.
Law § 3813(2-b) ("[N]o action or special proceeding shall be commenced
against any [school, school district, board of education, or an `officer of a
school district, board of education, board of cooperative educational services,
or school provided for in article eighty-five of this chapter or chapter ten
hundred sixty of the laws of nineteen hundred seventy-four'] more than one year
after the cause of action arose."). The shorter statute of limitations
also applies to an "officer of a school district, board of education,
board of cooperative educational services, or school provided for in article
eighty-five of this chapter or chapter ten hundred sixty of the laws of
nineteen hundred seventy-four." N.Y. Educ. Law § 3813(1). "Article 85
schools are statutorily designated `special schools,' including schools for the
instruction of the deaf and blind, as are schools governed by Chapter 1060
under the 1974 laws." Richards v. Calvet,No.
99 Civ. 12172, 2005 WL 743251, at *13 (S.D.N.Y. Mar. 31, 2005) (holding
that section 3813(1) does not apply to those claims against school principal
because he is not an "officer" within the meaning of the statute).

Principals and other school administrators are not officers of a
board of education; unless these administrators are employed at the special
schools specified by the statute, claims against them are not subject to the
one year statute of limitations. Id.; see also Fierro v. City of New York, 591 F.Supp.2d 431, 447 (S.D.N.Y. 2008) (holding
that plaintiff's claims against the school principal are not barred by one-year
statute of limitations because the principal "is not an officer within the
meaning of section 3813"), rev'd on other grounds,341 Fed.Appx. 696 (2d Cir.2009).

The shorter statute of limitations does not apply to plaintiff's
claims against Smith or Walsh. Defendants, as the moving party, have the burden
of coming forward with evidence demonstrating that Smith and Walsh are
"officers" of a board of education or special school as defined by
section 3813. They have failed to do so.

B. Time Bar Only Applies to NYSHRL Claims
Against DOE

Since the instant action was filed on July 26, 2010, under a
strict application of the statute of limitations, claims against the DOE for
discriminatory acts that occurred before July 26, 2009 would be time barred.
Plaintiff urges that actions that occurred prior to this date can nevertheless
be considered under the continuing violations doctrine. Under this doctrine,
when a plaintiff experienced a "continuous practice and policy of
discrimination, ... the commencement of the statute of limitations period may
be delayed until the last discriminatory act in furtherance of it." Gomes v. Avco Corp., 964
F.2d 1330, 1333 (2d Cir.1992); see also Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001).

250*250 In 2002, the
Supreme Court limited this long-standing rule as it applies federal employment
discrimination claims, holding that the continuing violation exception did not
apply to discrete, time-barred incidents, even where those incidents were
related to actionable ones:

[A] Title VII plaintiff raising claims of
discrete discriminatory or retaliatory acts must file his charge within the
appropriate time period.... A charge alleging a hostile work environment claim,
however, will not be time barred so long as all acts which constitute the claim
are part of the same unlawful employment practice and at least one act falls
within the time period.

Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106
(2002). It defined a "discrete act" as an action such as
"termination, failure to promote, denial of transfer, or refusal to
hire" that "constitutes a separate actionable `unlawful employment
practice.'" Id. at 114, 122 S.Ct. 2061. The continuing violations
doctrine was available in harassment claims, by contrast, because "[t]he
`unlawful employment practice' ... cannot be said to occur on any particular
day. It occurs over a series of days or perhaps years and, in direct contrast
to discrete acts, a single act of harassment may not be actionable on its
own." Id. at 115, 122 S.Ct. 2061.

1. NYSHRL Discrimination Claims Against DOE
Time Barred

The narrower definition of the continuing violations doctrine
under Morgan applies to plaintiff's discrimination claims
under state law. E.g. Milani v. International Business Machines Corp., Inc., 322 F.Supp.2d 434, 452 n. 32 (S.D.N.Y.2004) (holding
that Morgan applies to NYSHRL claims). Her claims pertaining
to acts which occurred prior to July 26, 2009, including disciplinary letters
issued to plaintiff during the 2007-2008 and 2008-2009 school years; formal and
informal observations of plaintiff during the 2007-2008 and 2008-2009 school
years; plaintiff's assignments for the 2008-2009 school year, and the June 18,
2009 "U" rating, are time barred and are dismissed.

251*251 Construing the
record in the light most favorable to the plaintiff, these discrete acts could
be considered part of a single, continuing policy of discrimination against
Sotomayor by defendant Walsh. He is alleged to have discriminated against
plaintiff by subjecting her to an inordinate number of formal and informal
observations, and by giving her negative ratings following those observations.
This pattern of activity could be found to have begun in the 2007-2008 school
year and continued into the 2010-2011 school year. The discriminatory conduct
is sufficiently similar to be considered part of a single policy. Compare Donlon v. Bd. of Educ. of Greece Cent. Sch. Dist.,No. 06-CV-6027, 2007 WL 108470, at *4 (W.D.N.Y. Jan. 12,
2007) (holding that the continuing violation doctrine was
inapplicable where plaintiff "asserts that she was subject to a number of separate evaluations
and classroom observations during a four-year period made by distinct individuals, each
of whom is alleged to have discriminated against her," since each
event constituted a discrete act (emphasis added)).

Claims based upon Walsh's pre-July 26, 2009 acts are timely for
the purposes of plaintiff's NYCHRL discrimination claim. The DOE does not
dispute that it can be held liable for such conduct of Walsh for the purpose of
these claims.

3. NYSHRL Harassment Claim Against DOE Timely

To the extent that these discrete acts cumulatively create a
hostile work environment, the continuing violations doctrine may save these
claims under the NYSHRL. Because some of the allegedly discriminatory conduct
occurred after July 26, 2009, all of the discriminatory acts alleged may be
considered timely for the purpose of plaintiff's state law hostile work
environment claim against the DOE. See Morgan, 536
U.S. at 122, 122 S.Ct. 2061.

Pursuant to the McDonnell Douglas framework,
the plaintiff must first establish a prima facie case of
discrimination or retaliation. E.g. Leibowitz, 584
F.3d at 498. The burden shifts to the employer to articulate a
legitimate, nonretaliatory reason for the adverse employment action. Id. If
the employer can do so, the "burden shifts back to the plaintiff to
demonstrate by competent evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
discrimination." Id. (internal quotation marks and
citation omitted). The plaintiff can sustain her burden by proving that
"the evidence in plaintiff's favor, when viewed in the light most
favorable to the plaintiff, is sufficient to sustain a reasonable finding that
[the adverse employment decision] was motivated at least in part by ...
discrimination." Tomassi v. Insignia Fin. Group, 478 F.3d 111, 114 (2d Cir.2007).

VIII. Federal Discrimination Claims Merit less

Plaintiff claims that the defendants discriminated against her
by: 1) subjecting her to more frequent classroom observations, and giving her
unsatisfactory evaluations following those observations, including unsatisfactory
year-end rating for the 2008-2009 school year; 2) writing letters to her file
regarding her behavior at an School Leadership Team meeting and the lack of
substitute lesson plans; 3) assigning her to teach classes that were not in
accord with her preference; 4) giving her an excessive teaching load; 5) giving
her a subpar room assignment for the 2011-2012 school year; 6) initially
excessing plaintiff from the school for the 2011-2012 school year, although she
was later reinstated; 7) failing to pay her for two test administration
periods; and 8) preventing her from performing "per session" work.

Sotomayor concedes that she cannot hold Smith and Walsh
individually liable for these acts under Title VII or the ADEA. Pl.'s Mem. 2.
These claims are dismissed.

Plaintiff cannot make out a prima facie case of
discrimination under federal law. The only actions allegedly taken by
defendants which were "materially adverse" to her are her inability
to procure "per session" 253*253 employment and
failure to pay her for two periods in which she was administering tests. These
incidents do not give rise to an inference of discrimination.

Sotomayor is a non-Caucasian woman over fifty of Hispanic
national origin. Defendants do not dispute that plaintiff is a member of a
protected class under the relevant statutes. See, e.g., 29
U.S.C. § 631(a) (protecting "individuals who are at least 40 years of
age"); 42 U.S.C. § 2000e-2(a)(1) ("It shall be an unlawful employment
practice for an employer ... to ... discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race ... or national origin."); 42 U.S.C. §
1983; N.Y. Exec. Law § 296(1)(a) ("It shall be an unlawful discriminatory
practice ... [f]or an employer ..., because of an individual's age, race, ...
[or] national origin, ... to discriminate against such individual in
compensation or in terms, conditions or privileges of employment.");
N.Y.C. Admin. Code § 8-107(a) (same).

"Whether job performance was satisfactory depends on the
employer's criteria for the performance of the job — not the standards that may
seem reasonable to the jury or judge." Thornley v. Penton Pub., Inc., 104 F.3d 26, 29 (2d Cir.1997). Negative
performance evaluations can indicate that the plaintiff was not satisfactorily
performing her duties. Compare Gladwin v. Pozzi,403
Fed.Appx. 603, 606 (2d Cir.2010) ("[Plaintiff] was never
given a negative performance evaluation, and the record shows she was deemed by
co-workers as `very effective,' `committed' and `very efficient,' thus
satisfying the second prong in demonstrating she was performing 254*254 her duties
satisfactorily."); with Mastrolillo v. Connecticut,352 Fed.Appx. 472, 473-74 (2d Cir.2009) ("[Plaintiff]
did not establish that she performed her job satisfactorily, given the negative
performance evaluations and her admitted lack of interest in teaching certain
advanced level courses.").

4. Inference of Discrimination

"A showing of disparate treatment — that is, a showing that
the employer treated plaintiff `less favorably than a similarly situated
employee outside his protected group' — is a recognized method of raising an
inference of discrimination for purposes of making out a prima facie case." Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir.2003). A
plaintiff relying on disparate treatment evidence "must show she was
similarly situated in all material respects to the individuals with whom she
seeks to compare herself." Graham, 230
F.3d at 39.

Since neither the more frequent observations nor the negative
reviews of the plaintiff's work had any material consequences on the terms and
conditions of Sotomayor's employment, they are not adverse employment actions.

2. Letters to File

Like other negative performance evaluations, letters to file do
not rise to the level of an adverse employment action where, as here, they do
not trigger other adverse consequences, such as loss of pay. See Part
VIII(B)(1).

3. Teaching Preferences

In order to constitute an adverse employment action, it is not
enough that defendants' gave plaintiff a subjectively less preferred teaching
assignment; the assignment must be "materially less prestigious,
materially less suited to h[er] skills and expertise, or materially less
conducive to career advancement." Galabya, 202
F.3d at 641 (holding that plaintiff's transfer from teaching
junior high school keyboarding to special education students at one school to
teaching high school keyboarding to mainstream students at another did not
constitute an adverse employment action). Compare Rodriguez v. Bd. of Educ., 620 F.2d 362, 366 (2d Cir.1980) (holding
that plaintiff's proffered evidence that she had tailored her master's and
doctoral coursework to prepare her for teaching junior high students so that
her reassignment from teaching junior high art classes to elementary school art
classes rendered her twenty years of experience useless was sufficient to
establish an adverse employment action); with, e.g., Missick v. City of New York, 707 F.Supp.2d 336, 349 n. 5 (E.D.N.Y.2010) (refusing
to recognize plaintiff's objection to having been reassigned from teaching
younger children to teaching sixth grade as an adverse employment actions); Ticali v. Roman Catholic Diocese of Brooklyn, 41 F.Supp.2d 249, 265 (E.D.N.Y.1999) (holding
that teacher's transfer to pre-kindergarten class from first grade class was
not an adverse employment action because teacher produced "no material
evidence that her transfer obliged her to perform tasks that were less
appropriate for her skills than her prior position or adverse to her in any
other legally cognizable way").

While defendants failed to scrupulously honor each of
Sotomayor's teaching preferences, there is no evidence that her assignments
were "materially less prestigious, materially less suited to h[er] skills
and expertise, or materially less conducive to career advancement" such
that they constituted an adverse employment action. See Galabya, 202
F.3d at 641.

Mere undesirable classroom assignments generally do not rise to
the level of an adverse employment action. See, e.g., Galabya, 202
F.3d at 640 (holding that "[a]s a matter of law, the
disparity in working conditions — which reduces to the fact that teachers at
[one school] rotate through classrooms whereas teachers at [another] have their
own classrooms — may be characterized as minor" and is insufficient to
establish an adverse employment action); Klein v. New York Univ., 786 F.Supp.2d 830, 847 (S.D.N.Y.2011) ("Undesired
office assignments are not adverse employment actions.") (citing Cunningham v. N.Y.S. Dep't of Labor,326 Fed.Appx. 617, 619-20 (2d Cir.2009); Stoddard v. Eastman Kodak Co.,309 Fed.Appx. 475, 479 (2d Cir.2009)); but
see Ximines v. N.Y.C. Dept. of Educ., Nos. 05-CV-1214, 07-CV-4390,
2011 WL 2607935, at *3-4 (E.D.N.Y. July 1, 2011) (holding, in case where
plaintiff alleged that she was assigned to a "remote dingy classroom"
for discriminatory and retaliatory reasons, that "[b]eing subjected to a
teaching environment, which was so cold that Plaintiff's ear would become
`numb,' ... rises above the level of minor annoyances' to the level of a
material adverse change in her employment conditions"). An unattractive
room in which to teach is not actionable.

6. Excessing

Had plaintiff actually been excessed, forcing her to find
employment at a new school, this could constitute an adverse employment action.
Yet she was reinstated as soon as Walsh received word that it was not necessary
to excess any of the teachers at the school. The mere potentiality that she
would be excessed is insufficient to constitute an adverse employment action,
as the terms and conditions of her employment were not impacted.

While the loss of Sotomayor's opportunities for "per
session" employment, as well as the defendants' failure to pay her for
test administration, could both constitute adverse actions, nothing in the
record indicates that these actions are the result of discrimination.

Plaintiff has never been denied the opportunity to work a
"per session" job that she has applied for, nor has she been replaced
as the leader of the ESL afterschool program which she formerly led. The
starting date for the ESL program during the 2011-2012 school year was delayed.
When a vacancy notice for the position was posted in January 2012, Sotomayor
did not apply for the position. Nothing in the record indicates that the delay
was the result of discrimination, nor that Sotomayor would not have gotten the
job had she applied for it.

Her allegation that she was improperly denied pay is also
without merit. Plaintiff herself chose to use the period scheduled as her
professional period for ESL Administration as her preparation period, and to
use her scheduled preparation period as her professional period. Her grievance
was denied because the period during which she was assigned to administer the
tests was her scheduled professional period, not a preparation period.
Defendants were simply asking Sotomayor to perform the normal duties required
of her position: to administer tests during her professional period for ESL
Administration. No inference of discrimination arises from this request.

Because plaintiff cannot establish a prima facie case
of discrimination under federal law, these claims are dismissed.

IX. State Discrimination Law

Claims under the NYSHRL are analyzed under the same standards as
federal discrimination claims. E.g. Leibowitz, 584
F.3d at 498 n. 1. As noted in Part VI(B)(1), supra, only
those acts which occurred after July 26, 2009 are timely as to the DOE. The
only alleged discriminatory acts that occurred after this date are the
observations during the 2010-2011 school year; the failure to pay for
preparation periods; plaintiff's initial excessing for the 2011-2012 school
year; her unfavorable classroom assignment that year; and the "loss"
of her "per session" position. For the reasons discussed above, see Part
VIII, supra, these claims fail to make out a prima
facie case of discrimination.

None of the claims raised against Smith and Walsh are time
barred. See Part VI(A). They may be held individually liable
under state law. Pl.'s Mem. 2; see also, e.g., Tomka v. Seiler Corp., 66
F.3d 1295, 1317 (2d Cir.1995) ("[A] defendant who actually
participates in the conduct giving rise to a discrimination claim may be held
personally liable under the [NYS]HRL."). Yet for the reasons stated above, see Part
VIII(B), plaintiff has failed to make out a prima facie case
of discrimination under the NYSHRL against these defendants.

X. City Discrimination Law

A. More Liberal Standard Applies

As noted in Part VII, supra, following the 2005
amendments, the NYCHRL requires that courts give the statute an independent and
more liberal construction than its federal and state counterparts. Restoration
Act § 7 ("The provisions of this [] title shall be construed liberally for
the accomplishment of the uniquely broad and remedial purposes thereof,
regardless of whether federal or New York State civil and human rights laws,
including those laws with provisions comparably-worded to provisions of this
title, have been so construed."); see also Loeffler, 582
F.3d at 278 ("[C]laims under the City HRL must be reviewed
independently from and "more liberally" than their federal and state
counterparts."); Albunio v. City of New York, 16 N.Y.3d 472, 922 N.Y.S.2d 244, 947 N.E.2d 135,
137 (2011) (holding that the NYCHRL must be construed
"broadly in favor of discrimination plaintiff's, to the extent that such a
construction is reasonably possible"); Williams,872
N.Y.S.2d at 30-31 ("[C]ourts [must] be sensitive to the
distinctive language, purposes, and method of analysis required by the
[NYCHRL], requiring an analysis more stringent than that called for under
either Title VII or the [NYSHRL]."). "Interpretations of New York
state or federal statutes with similar wording [only] may be used to aid in
interpretation of New York City Human Rights Law, viewing similarly worded
provisions of federal and state civil rights laws as a floor below
which the City's Human Rights law cannot fall." Id. § 1
(emphasis added).

The task of a court applying the NYCHRL is to "first
identify the provision of the City HRL [it is] interpreting and then ask, as
required by the City Council: What interpretation `would fulfill the broad and
remedial purposes of the City's Human Rights Law'?" Williams,872
N.Y.S.2d at 37. The NYCHRL forbids:

[A]n employer or an employee or agent thereof,
because of the actual or perceived age, race, ... [or] national origin... to
discriminate against such person 258*258 in compensation or
in terms, conditions or privileges of employment.

N.Y.C. Admin. Code, § 8-107.

In light of the broad purpose of the NYCHRL, unlike under state
and federal law, plaintiff need not show that an employment action was
materially adverse. E.g. Williams,872
N.Y.S.2d at 34 (holding there is no material adversity
requirement for a retaliation claim under the NYCHRL); Margherita v.
FedEx Exp., No. 07 CV 4826, 2011 WL 5024577, at *8 (E.D.N.Y. Oct. 20,
2011) (no material adversity requirement for a discrimination claim under the
NYCHRL). "In order to make out the [adverse action] prong of a prima facie
case of discrimination under the NYCHRL, a plaintiff must simply show that she was
treated differently from others in a way that was more than trivial,
insubstantial, or petty". See, e.g., Williams v. Regus Mgmt. Group, LLC, 836 F.Supp.2d 159, 173 (S.D.N.Y.2011) (describing
development of NYCHRL case law since 2005). Similarly, "[t]he [inference
of discrimination prong] of the prima facie case is satisfied if a member of a
protected class was treated differently than a worker who was not a member of
that protected class." Id.

Nevertheless, a plaintiff must still link the adverse employment
action to a discriminatory motivation. See Williams,872
N.Y.S.2d at 34-35. Where a plaintiff cannot do so, her claims fail. Id.

B. Plaintiff Can Establish a Prima
Facie Case Under City Law as to Observations, Evaluations, and Letters
to File

Many of defendants' activities fall short of actionable
discrimination even under the more liberal standard of the NYCHRL because
plaintiff cannot show that she was treated differently than members of a
non-protected class. As noted in Part VIII(B)(7), above, there is no evidence
that plaintiff's "per session" employment opportunities were
diminished, or that she was denied pay for two test administration periods,
because of her race, national origin, or age. There is similarly no proof that
younger Caucasian teachers were given lighter teaching loads, or that their
teaching preferences were honored more frequently. Nor is there any indication
that Sotomayor's classroom assignments were influenced by her race, national
origin, or age. She does not claim that younger, Caucasian teachers were given
preferred classroom assignments, while the older, non-Caucasian teachers at the
school received less favorable assignments. Rather, she claims that she was
uniquely disfavored, since no other teachers were forced to share classrooms
for two consecutive years, or assigned to classrooms full of extraneous
materials and broken desks. No other evidence is cited indicating that these
actions were motivated by improper considerations.

Similarly, the mere possible excessing is too insubstantial to
constitute a change in the terms and conditions of her employment. She was not
excessed.

Plaintiff has put forward sufficient evidence to establish a prima
facie case of discrimination for her claim of discriminatory
observations, evaluations, and letters to file. While these actions do not rise
to the level of a materially adverse employment action, they are more than
merely "trivial, insubstantial, or petty." The circumstances of these
acts give rise to an inference of discrimination. It is disputed whether
non-Caucasian and/or older teachers were disproportionately subjected to
similar treatment. Plaintiff claims that she was performing her job
satisfactorily.

C. Legitimate, Non-Discriminatory Reasons

Defendants' argument is simple: "namely [that] plaintiff
deserved the review[s] 259*259[s]he got." Hunter v. St. Francis Hosp., 281 F.Supp.2d 534, 544 (E.D.N.Y. 2003).
They claim that Sotomayor was — in their legitimate, professional view — an
objectively underperforming teacher. This led her to be evaluated more
frequently and more negatively than other teachers, and caused the defendants
to issue her letters to file. This legitimate reason is sufficient to shift the
burden back to Sotomayor to show evidence of pretext.

D. No Evidence of Pretext

Plaintiff cannot show that the defendants' proffered reason is a
pretext for discrimination. While plaintiff disagrees with her performance
ratings, a "plaintiff's subjective disagreement with [his performance]
reviews is not a viable basis for a discrimination claim." Valentine v. Standard & Poor's, 50 F.Supp.2d 262, 284 (S.D.N.Y.1999).
That an evaluation is tainted by discriminatory motives can be shown if she can
point to similarly situated employee who was evaluated differently. For
example, in a Title VII case, the Court of Appeals for the Second Circuit found
that an "evaluation occurred under circumstances suggesting discriminatory
motives" where:

[Plaintiff's supervisor], who is accused of
being responsible for much of the discrimination, conducted [plaintiff]'s
evaluation after having supervised her for only a week. Despite the fact that
she had no disciplinary write-ups, he gave her a score of two out of five. A
contemporary, anonymous crewmember evaluation, instead, gave her a score of four
out of five. Moreover, at the same time [plaintiff's supervisor] evaluated
[another employee not within the protected class] ... and gave him an overall
rating of four out of five even though [that employee] was written up and
verbally counseled on numerous occasions throughout the preceding year. And
[that employee] was then promoted.

While the plaintiff has presented facts showing that
non-Caucasian and older teachers were treated as underperforming, she has not
shown that white teachers who were thought to be underperforming were treated
more favorably. The record reflects that Caucasian and younger teachers did
receive unsatisfactory ratings. See Part II(J)(4).

The evidence shows that plaintiff's unsatisfactory ratings were
based on defendants' (and others') legitimate perception of her teaching
abilities. Beginning in 2002, plaintiff was censured — including by individuals
other than the defendants — for her failure to adequately time and pace here
lessons and for the arrangement of her classroom. In the same years plaintiff
was negatively evaluated by the defendants, she also received negative
assessments from other individuals who are not accused of discrimination —
including Mann, an objective outsider. She received disciplinary letters to
file from other administrators at the school. Nor were plaintiff's performance
ratings consistently negative: She received satisfactory reviews from Walsh
prior to 2007, and was rated "satisfactory" (presumably by Walsh
and/or Smith) for her performance during 260*260the 2009-2010 and
2010-2011 school years. The observations and performance evaluations were not
used as a pretext for termination, but as a sign that Sotomayor needed further
professional assistance. Defendants provided this to her, partly by arranging for
her to meet with Ms. Mann.

Plaintiff seeks to show pretext by pointing to other facts that
allegedly show bias. Neither Walsh nor Smith made any derogatory comments to
the plaintiff or any other teacher. Walsh was on the team that initially hired
her; he wrote a letter recommending her for leadership training. She
nevertheless seeks to impute racial animus based on statements the defendants
made regarding students. Defendants argue that these statements are neutral
because they do not explicitly implicate race or national origin.

Evidence of discriminatory statements directed at others in the
presence of the plaintiff, under some circumstances, can be used to support an
inference of bias. Cf. Leibovitz v. N.Y.C. Transit Auth., 4 F.Supp.2d 144, 152 (E.D.N.Y. 1998) ("There
was sufficient evidence of widespread gender-based harassment for the jury to
find a hostile work environment to which the Authority was deliberately
indifferent" where "[p]laintiff testified that she was told of the
harassment of other women repeatedly."), rev'd252 F.3d 179, 190 (2d Cir.2001) (noting
that "evidence of harassment directed at other co-workers can be relevant
to an employee's own claim of hostile work environment discrimination" but
holding that plaintiff "who was not herself a target of the alleged
harassment, was not present when the harassment supposedly occurred, and did
not even know of the harassment while it was ongoing [] failed to prove that an
environment existed at work that was hostile to her because of her sex").
A facially neutral remark may be derogatory in the context in which it is made.
Yet "stray remarks are insufficient to show pretext." Phillip v. City of New York,No. 09 Civ. 442, 2012 WL 1356604, at *9 (E.D.N.Y. Apr.
19, 2012); see also Lee v. N.Y. State Dept. of Health, No.
99 Civ. 4859, 2001 WL 34031217, *19 (S.D.N.Y. Apr. 23, 2001) (finding that
remarks by an employer cannot establish pretext when they are remote in time
and are unrelated to the challenged adverse employment decision).

No reasonable jury could find that Sotomayor was subjected to
more frequent classroom observations, and received negative evaluations and
letters to file, because of her race, national origin, or age. Her NYCHRL claim
must be dismissed.

As a general rule, to constitute a hostile work environment,
"incidents must be more than episodic; they must be sufficiently
continuous and concerted in order to be deemed pervasive." Alfano, 294
F.3d at 374 (internal citations and quotations omitted).
"Isolated acts, unless very serious, do not meet the threshold of severity
or pervasiveness." Id.; see Petrosino v. Bell Atlantic, 385 F.3d 210, 224 (2d Cir.2004) ("isolated
incidents of offensive conduct (unless extremely serious) will not support a
claim of discriminatory harassment").

B. City Law

Hostile work environment claims are analyzed under the same
provision of the NYCHRL as discrimination claims. See Williams,872
N.Y.S.2d at 37 ("There is no `sexual harassment provision'
of the law ...; there is only the provision of the law that proscribes imposing
different terms, conditions and privileges of employment based, inter alia, on
gender (Administrative Code § 8-107[l][a])."). Under the NYCHRL,
defendants' discriminatory conduct need not be "severe or pervasive"
to create an actionable hostile work environment. Id. at
39-41. "[Q]uestions of `severity' and `pervasiveness' are applicable to
consideration of the scope of permissible damages, but not to the question of
underlying liability." Id. at 38. The law is designed to
ensure "that discrimination plays no role" in the
workplace. Id. (emphasis in original). The relevant
consideration is whether there is a triable issue of fact as to whether the
plaintiff "has been treated less well than other employees" because
of her race, national origin, or age. Id. at 39.
"[D]efendants can still avoid liability if they prove [as an affirmative
defense] that the conduct complained of consists of nothing more than what a
reasonable victim of discrimination would consider `petty slights and trivial
inconveniences.'" Id. at 41. See also Nelson v. HSBC Bank USA, 87 A.D.3d 995, 929 N.Y.S.2d 259, 264 (2d Dep't
2011) (adopting the standard set forth by the First Department
in Williams).

C. Plaintiff Cannot Show Discrimination

As discussed in Parts X(C)-(D), plaintiff cannot show that a
hostile work environment was created "because of her race, age, or
national origin. Her hostile work environment claims are dismissed."

XII. No Prima Facie Case of
Retaliation Under Title VII, ADEA, NYSHRL, or NYCHRL

262*262 [A] plaintiff must
show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded a
reasonable worker from making or supporting a charge of discrimination. We
speak of material adversity because we believe it is important
to separate significant from trivial harms.

The essential elements of a retaliation claim under the NYCHRL
are the same, E.g. Pilgrim v. McGraw-Hill Companies, Inc., 599 F.Supp.2d 462, 469 (S.D.N.Y.2009) ("To
prevail on a NYCHRL retaliation claim, a plaintiff must show: 1) he engaged in
a protected activity; 2) his employer was aware of that activity; 3) he
suffered an action that would be reasonably likely to deter a person from
engaging in a protected activity; and 4) that there was a causal connection
between the protected activity and the action."); see also Dixon v. Int'l Fed. of Accountants,416 Fed.Appx. 107, 110 n. 1 (2d Cir.2011) (same).
Yet the employer's conduct need not be as severe to trigger liability. Unlike
under federal and state law, the employer's actions need not be
"materially adverse" to the plaintiff, but merely "reasonably
likely to deter a person from engaging in protected activity." N.Y.C.
Admin. Code § 8-107(7); Fincher, 604
F.3d at 723; Williams,872
N.Y.S.2d at 34 & n. 12. A decision on whether an action was
"reasonably likely to deter" the plaintiff must be made in light of
the City Council's goal of "meld[ing] the broadest vision of social
justice with the strongest law enforcement deterrent." Williams,872
N.Y.S.2d at 32 n. 7 (internal citations and quotations
omitted).

Plaintiff has failed to show that she engaged in any
"protected activity" as defined by federal, state, or city
discrimination law. While she alleges that she was retaliated against for taking
FMLA leave, this is not a "protected activity" under Title VII, the
ADEA, the NYSHRL, or the NYCHRL. See 42 U.S.C. § 2000e-3
(making it unlawful under Title VII to discriminate against any individual
because he has opposed any practice made an unlawful employment practice
"by this subchapter" or participated in an investigation, proceeding
or hearing "under this subchapter"); 29 U.S.C. § 623(d) (making it
unlawful under the ADEA to discriminate against any individual who has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or litigation "under this chapter"); N.Y. Exec. L. §
296(7) (making it an unlawful discriminatory practice for any person to
retaliate or discriminate against any person because she has opposed any
practices forbidden the New York State Human Rights Law); NYCHRL § 8-107(7)
("It shall be an unlawful discriminatory practice for any person engaged
in any activity to which this chapter applies to retaliate or discriminate in
any manner against any person because such person has (i) opposed any practice
forbidden under this chapter, (ii) filed a complaint, testified or assisted in
any proceeding under this chapter, (iii) commenced a civil action alleging the
commission of an act which would be an unlawful discriminatory practice under
this chapter, (iv) assisted the commission or the corporation counsel in an
investigation commenced pursuant to this title, or (v) provided any information
to the commission pursuant to the terms of a conciliation agreement made
pursuant to section 8-115 of this chapter.").

XIII. FMLA Retaliation Claim Fails

Retaliation claims under the FMLA are analyzed under the McDonnell263*263Douglas framework. Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.2004). In
order to make out a prima facie case, plaintiff must establish that: 1) she
exercised rights protected under the FMLA; 2) she was qualified for her
position; 3) she suffered an adverse employment action; and 4) the adverse
employment action occurred under circumstances giving rise to an inference of
retaliatory intent. Id.

Plaintiff has failed to establish a prima facie case
of FMLA retaliation. The actions taken were not materially adverse to her, even
under the more liberal standard applied to retaliation claims, since no
reasonable factfinder would conclude that they would have dissuaded a
reasonable worker from taking FMLA leave. See Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68, 126 S.Ct. 2405. Nor do
the facts give rise to an inference of discriminatory intent, as plaintiff
began receiving negative evaluations and letters to file prior to her
application for her first FMLA leave.

XIV. Conclusion

In view of the facts of this case, no reasonable juror could
conclude that Sotomayor was a victim or discrimination. The case is dismissed.
No costs or disbursements are ordered.

TV Appearances by Betsy Combier

Contact me with a concern or issue

I assist anyone who needs help, so email me your problem to start the ball rolling! I am a teacher/parent advocate, and I am the editor/writer for this blog and the website parentadvocates.org. I also write about court corruption on my blog "NYC Court Corruption". I am interested in random injustice and the criminalizing of innocent people. If you want to chat you may email me at: betsy.combier@gmail.com and I'm on twitter and have a facebook page too. I'm not an attorney and do not give legal advice.

If you want to talk with me about your 3020-a charges, I consult and go over your case without charge. No fee.

And, in response to the lies of certain individuals who resent my work, the truth is that all conversations are confidential and I do not tape secretly.

My Thoughts and Raison d'etre

This blog is about the denial of Constitutional rights by the Mayor, the New York City Department of Education and the Chancellor, New York State and Federal Courts, New York State legislature, and the United Federation of Teachers (UFT), as well as PACs and all parties participating in the business of public school education in New York City, to harm and in neglect of parents, children, and staff of public schools in the five boroughs. These thoughts are not simply mindless conclusions reached out of thin air, but a result of 14 years of research into the NYC DOE and the Courts as a reporter and paralegal.
I am an advocate of Unions and union rights, public schools and charters, and learning online as well as outside of the classroom. I cannot and do not support anyone, whether they be union management, government, private members of the political or legal system, or simply retired teachers with an agenda, if he or she tramples, discards, or rebuffs anyone's individual civil rights. As a reporter, journalist, advocate, researcher and paralegal, I have created this blog to inform the public about my experience working for the UFT and being the parent of four daughters who went through the public school system in NYC, as well as examine issues that flow from the massive denial of due process rights that I saw and have documented. The two most important points you should remember: first, everyone at the New York City Board/Department of Education and all Union bigs are motivated by power and money, and looking good. If anyone dares to blow the whistle on these racketeers, retaliation follows, so be a strategist; second, I am not an Attorney and nothing I write or say is legal advice, simply my thoughts. Take 'em or leave 'em.
Betsy Combier, Editor
NYC Rubber Room Reporter
http://nycrubberroomreporter.blogspot.com
New York Court Corruption
http://newyorkcourtcorruption.blogspot.com
Parentadvocates.org
http://www.parentadvocates.org
Facebook: http://www.facebook.com/betsy.combier
Twitter: http://twitter.com/BetsyCombier
The NYC Public Voice
http://nycpublicvoice.blogspot.com/betsy.combier@gmail.com
Lawline July 27, 2011
http://www.teachem.com/lawlinetv/learn/lawline-tv-teachers-unions-the-last-in-first-out-rule/

Principal Anne Seifullah changes her image so that she can keep her job amidst sexting and trysts in the school, Robert Wagner Secondary Sch...

Testimonial from an Exonerated Teacher

Dear Betsy,I am forever indebted to you, Betsy, for your expert counsel throughout a horrific ordeal. You worked tirelessly to prove my innocence in a 3020a proceeding that was instigated by a corrupt school district and fueled by lies. My proceedings ended with my complete exoneration, my record expunged and my immediate return to the classroom. We didn't even need to file an appeal! Thank you, Betsy. I am now eligible to retire and enjoy the benefits you helped me to protect. God bless you and the work you do protecting the innocent.Sincerely,Maria Gargano

Betsy Combier is the Best!

Google + Rubber Room Community

FAITH

When we walk to the edge of all the light we have and take the step into the darkness of the unknown, we must believe that one of two things will happen. There will be something solid for us to stand on or we will be taught to fly. Patrick Overton

Truth Seeks Light - Lies Seek Shadows

Twins Jill Danger (left) and Betsy Combier(right)

sayin like it is

Actions Have Consequences

Writing as Music

Rubber Room teachers wish me a happy birthday (2006)

"Educating the mind without educating the heart is no education at all."

Rubber Room Satire

The Labor Movement

The Teaching Equation

We Can Work Out Our Differences

The E-Accountability Foundation

The E-Accountability Foundation brings you this blog which highlights issues that have or should be read by people interested in civil rights, and accountability. The E-Accountability Foundation is a 501(C)3 organization that holds people accountable for their actions online and, through the internet, seeks to bring justice to anyone who has been harmed without reason. We give the'A for Accountability' Awardto those who are willing to blow the whistle on unjust, misleading, or false actions and claims of the politico-educational complex in order to bring about educational reform in favor of children of all races, intellectual ability and economic status.

AddThis

Performance Management - Office of Labor Relations

From Betsy Combier

The NYC Office of Labor Relations, with the support of the UFT, has issued to principals a document called"Performance Management" on how to get rid of an incompetent teacher. Who is an "incompetent teacher"? Anyone the NYC Department of Education wants to remove from the system because he/she is too senior (makes too much money), is disabled (and therefore cannot be deemed factory-perfect) and/or is other impaired (is a whistleblower, cannot be intimidated, is ethnically challenged - not the 'right' race, etc).

Candace R. McLaren

Director, Office of Special Investigations (OSI)

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Polo Colon

"Rubber Room"

(1) a space where a worker subject to a disciplinary hearing or other administrative action waits and does no work; generally, a place or personal mind-set of isolation.(2) a literal reference to a padded cell, which is, according to the New Oxford American Dictionary, “a room in a psychiatric hospital with padded walls to prevent violent patients from injuring themselves.”from Double-Tongued Dictionary http://www.doubletongued.org/index.php/dictionary/rubber_room/

"Rubberization"

The word "rubberization" is a new word that is used to describe the process of assigning and paying people to sit and do nothing in a drab room away from their place of employment while their employers make up charges that allege sexual or corporal misconduct without any facts upon which to base the allegation on.

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Theresa Europe, NYC BOE ATU Director

Robin Greenfield

Deputy Counsel to the NYC DOE

UFT Pres. Mike Mulgrew and NYC Mayor Mike Bloomberg

UFT umbrella pals

New York State Supreme Court Judge Manuel Mendez

ATR CONNECT

Tenured Teachers who are found to be guilty of misconduct or incompetency at 3020-a but are not terminated, who have blown the whistle on the misconduct of politically favored NYC Department of Education employees, and/or who are simply disliked for any reason can suddenly find themselves in the ATR ("Absent Teacher Reserve") pool - employees without rights or voices, and without chapter leader union representation.

This new group of people are the "new" rubber roomers without representation at the UFT and denied the protection of the Collective Bargaining Agreement, because basically they have been pushed out of their jobs unfairly and under color of law by Mayor Bloomberg and the Chief Executives of the Department of Education who call themselves "Chancellors", "Network Leaders", "Superintendents", etc., consistently without any facts or evidence to support the false claims.

A group of teachers who are, or were, made into ATRs, ATR Polo Colon, and I, Betsy Combier, an advocate for transparency and labor/employment rights, have joined together to expose the denial of due process, civil and human rights by chiefs of the NYC Department of Education (NYC DOE), certain arbitrators at 3020-a, leaders of the United Federation of Teachers (UFT), the "investigators" -agents who work for the Special Commissioner of Investigation (SCI), Office of Special Investigation (OSI), and the Office of Equal Opportunity (OEO) - and the Attorneys who work for the New York United Teachers (NYSUT), and the New York Law Department (Corporation Counsel).

In order to protect the safety of those who join this group to promote an end to the "Rubberization" process described on this blog since 2007, names of those who tell their stories will, for now, remain anonymous if the person so desires, and Polo and I will be the gatekeepers. So if you are an ATR, or know a story involving an ATR or someone re-assigned or about to go into a 3020-a, please use the email address advocatz77@gmail.com and give us your contact information. We will protect your anonymity and hold onto your privacy.

Betsy Combier and Polo Colon, Editors

FAITH When we walk to the edge of all the light we have and take the step into the darkness of the unknown, we must believe that one of two things will happen. There will be something solid for us to stand on or we will be taught to fly.

Patrick Overton

We have forty million reasons for failure but not a single excuse.Rudyard Kipling (1865-1936)

The Re-Assignment Overview by Betsy Combier

The New York City Board of Education decided in 2002 to rid the public school system of staff who interfered with their takeover and control. The criteria for a "good teacher" is now, more often than not, a "silent teacher", a person who never asks questions, is younger than 40, is making a salary below $50,000, does not care about kids and what they learn, or whether or not money (books, supplies, equipment, etc) is missing. When a teacher or staff member of a school dares to do the right thing and speaks out about wrong-doing - this person is often called a "whistleblower" or "flamethrower" - or, simply is not liked for any reason by the Principal/NYC personnel, suddenly he/she is accused of something by somebody ("given a label of "A", "B", "C", and so on) and whisked away to a drab room called a temporary re-assignment center or "rubber room". Members of the offices of the Special Commissioner of Investigation or the Office of Special Investigations then start work on building a case against the person to justify their being thrown in prison, declared "unfit for duty", or, as Mr. Joel Klein has said, characterized as "guilty of sexual activities and corporal punishment" against the children of New York City.The stories of the people I have met who sit every day in the 8 rubber rooms of NYC prove to me that Mr. Klein is very wrong about his assessment, and this blog is created to prove it to you.

Puppy Snooze

US Department of Labor ELAWS

Aeri Pang, Gotcha Squad Attorney

Attorney Pang, red dress, now chief Attorney For New York State Supreme Court Judge Cynthia Kern

New York State Supreme Court Judge Cynthia Kern

NYC EdStats You Can Use

$12.5 billion: Annual New York City Department of Education (DOE) budget (2002)

$21 billion: Annual New York City DOE budget (2009)
1,719: Number officials employed by the DOE central administration in June 2002

2,442: Number of officials employed by the central administration as of November 2008

2: Number of DOE officials earning more than $180,000 per year in 2004.

22: Number of DOE officials earning more than $180,000 per year in 2007.

5: Number of DOE public relations staffers in 2003.

23: Number of DOE public relations staffers in 2008.

944: Number of contracts approved by DOE in 2008, at a total cost of $1.9 billion.

20: Percentage of contracts that exceeded estimated cost by at least 25 percent.

$67.5 million: Annual budget of Project Arts, a decade-old program that was the sole source of dedicated funding for arts education. It was eliminated in 2007.

86: Percentage of principals who said in a 2008 poll that they were unable to provide a quality education because of excessive class sizes in their schools.

100,000: Number of seats DOE plans to provide for charter school students by 2012.

25,000: Number of seats DOE plans to build under 2010 to 2014 capital plan.

66,895: Number of K-3 school-children in classes of 25 or more during the 2008-09 school year.

15,440: Average number of seats per year built during the last six years of the Rudolph Giuliani administration.

10,895: Average number of seats per year built during the first six years of the Bloomberg administration.

27.2: Percentage of newly hired teachers in 2001-02 who were Black.

14.1: Percentage of newly hired teachers in 2006-07 who were Black.

53.3: Percentage of newly hired teachers in 2001-02 who were white.

65.5: Percentage of newly hired teachers in 2006-07 who were white.

76: Percentage of white and Asian students who performed better than the average Black and Latino students in 8th grade English Language Arts (ELA) in 2003.

75: Percentage of white and Asian students who performed better than the average Black and Hispanic students in 8th grade ELA in 2008.

77: Percentage of white and Asian students who performed better than the average Black and Hispanic 8th graders in math in 2003.

81: Percentage of white and Asian students who performed better than the average Black and Hispanic 8th graders in math in 2008.

54: Percentage of New York City public school parents who disapproved of Mayor Bloomberg’s handling of education, according to a March 2009 Quinnipiac poll.

Sources: New York City Council, New York City Comptroller’s Office, New York Daily News, New York Post, Eduwonkette, Quinnipiac Institute, Black Educator, Class Size Matters, New York City Schools Under Bloomberg and Klein.

Betsy Combier and NYSUT lawyer Chris Callagy

The New York City Whistle Award

NYC Whistlers, Winners of the NYC Whistle Award

...are those individuals in New York City who are willing to whistleblow unjust, misleading, or false actions and claims of the politico-educational complex in order to bring about educational reform in favor of children of all races, intellectual ability and economic status. Whistlers ask questions that need to be asked, such as "where is the money?" and "Why does it have to be this way?" and they never give up.

These people have withstood adversity and have held those who seem not to believe in honesty, integrity and compassion accountable for their actions.

Congratulations, and keep up the good work!

Betsy Combier

Special Commissioner of Investigation Richard Condon

Condon "qualified" for his current post after Bloomberg lowered standards; who will leash him?

A great teacher

After being interviewed by the school administration, the prospective teacher said: 'Let me see if I've got this right.

'You want me to go into that room with all those kids, correct their disruptive behavior, observe them for signs of abuse, monitor their dress habits, censor their T-shirt messages, and instill in them a love for learning.

'You want me to check their backpacks for weapons, wage war on drugs and sexually transmitted diseases, and raise their sense of self esteem and personal pride.

'You want me to teach them patriotism and good citizenship, sportsmanship and fair play, and how to register to vote, balance a checkbook, and apply for a job 'You want me to check their heads for lice, recognize signs of antisocial behavior, and make sure that they all pass the final exams.

'You also want me to provide them with an equal education regardless of their handicaps, and communicate regularly with their parents in English, Spanish or any other language, by letter, telephone, newsletter, and report card.

'You want me to do all this with a piece of chalk, a blackboard, a bulletinboard, a few books, a big smile, and a starting salary that qualifies me for food stamps. 'You want me to do all this and then you tell me. . . I CAN'T PRAY?

NYC Police Commissioner Ray Kelly

Joel Klein's famous statement about rubber room teachers and staff

On November 27, 2006, temporarily re-assigned teacher (TRT) Polo Colon asked Joel Klein, the "pretend" Chancellor of the NYC public school system, if he had voted to terminate teachers at the secret Executive Session held just before the public meeting of the Panel For Educational Policy.Mr. Klein answered,"We did not vote to terminate you. We did vote to terminate a teacher in executive Session...in fact, we voted to terminate two teachers. It's perfectly consistent with the law.Many teachers have been charged with sexual activities and some are charged with corporal punishment...I have no interest in removing people who are qualified to teach, I can assure you, because I dont get any return...and in fact, I have complained publicly about how long this process drags out. But our first concern will always be and, as a former lawyer and somebody who clerked on the United States Supreme Court I will tell you, there is no violation of due process whatsoever..."- extracted from the audiotape of the PEP meeting bought by Betsy Combier after filing a FOIL request to the NYC BOE

November 26, 2007 Candelight Vigil

The School Law Blog

A Review of Battling Corruption in America's Public Schools by Betsy Combier

Lydia Segal's book puts the NYC, Chicago, and California Departments of Education on notice....we who have read this book know more about how the system is not there for our kids than "you" want us to know. Lydia Segal's book Battling Corruption in America's Public Schools changes the public school reform movement forever. We can no longer assume that more money allocated to our schools will "fix" the disaster that is our public school system.

Lydia Segal draws on her 10 years of undercover investigation and research in over five urban school districts, including the three largest, New York City, Los Angeles, and Chicago, and the two most decentralized, Houston and Edmonton, Canada, to provide, in her new book Battling Corruption in America's Public Schools, the details of the corruption, theft, fraud, and patronage that has overrun our public school establishment for several decades. There is no question that anyone who is interested in school reform -this means anyone who pays taxes, is a parent or guardian of a child attending school and/or who works toward a goal of establishing an education system that puts children first - must read this book. Ms. Segal's research and information on the education establishment's 'dark' side outrages the reader, and incites us to demand change. Her book therefore, is much more than a book, it is a call to action. We cannot be bystanders any longer to the systemic abuse she so vividly describes, and we will never be able to listen in the same way ever again to school Principals, Superintendents, school custodians or district board members as they request more money "to help the children."

The book's detailed reports on the corruption and crime in our public schools, supported by 52 pages of interview notes, references and specific examples, provide irrefutable evidence that the current failures of our nation's public schools are not due to the lack of money but the impossibility of getting the money to the children who need it and for whom the money is allocated in the first place. Recent statistics show that students of all ages are not learning what they need to know, schools are overcome with violence, teachers are demoralized, and yet billions of dollars are literally shovelled into the system every year. The New York City school system receives more than $16 billion every year; Los Angeles, $7 billion; and Chicago, $3.6 billion. Where does this money go? We have all asked this question as we have walked through school hallways dodging the paint falling off the walls and ceilings, watching our children sitting on broken chairs, using bathrooms without running water or toilet paper, and struggling to achieve their personal best without the services and resources they are supposed to have. Battling Corruption in America's Public Schools is the first book ever to systematically examine school waste and corruption and how to fight it. Ms. Segal, an undercover school investigator turned law professor, documents where the money goes, how waste and fraud embedded in the operation of large school bureaucracies siphon money from classrooms, distort educational priorities, block initiatives, and what we can do to bring badly-needed change. She describes in detail how only a small percentage of the money allocated to students in our public schools actually gets used by them due to corruption and waste, and how city school systems scoring lowest on standardized tests tend to have the biggest criminal records and most payroll padding. Coding problems, the procurement process, compartmentalization and opacity of information leave administrators with only two options: good corruption (which ultimately helps the kids) and bad corruption (which never helps anyone but the perpetrator and his/her allies and accomplices). Indeed, the system fights those who try the good corruption route.

Ms. Segal argues that the problem is not usually bad people, but a bad system that focuses on process at the expense of results. Decades of rules and regulations along with layers of top-down supervision make it so hard to do business with school systems that they encourage the very fraud and waste they were designed to curb. She tells us about how the "godfathers" and "godmothers" (the school board members) obtain jobs for their "pieces" in order to protect the systemic waste and fraud from being dismantled or exposed. Fortunately, she writes, there are good people involved in the corruption as well who must violate the rules in order to get their jobs done. Nonetheless, absurdities abound: school systems following rules to save every penny spend thousands of dollars hunting down checks as small as $25; it takes so long to pay vendors for their work that some have to bribe school officials to move their checks along; caring Principals who want to fix leaky toilets may have to pay workers under the table because submitting a work order through the central office could, and often does, take years. Meanwhile, those who pilfer from classrooms get away with it because the pyramidal structure of large districts makes schools inherently difficult to oversee. What makes Battling Corruption in America's Public Schools a must-read is not only the fascinating - and depressing - details of the systemic wrong-doing but also Ms. Segal's suggestions for reform, based on the proven track records of school systems across North America that have successfully reduced waste and fraud and have pushed more resources into schools.

The pathology of the corruption suggests the remedy, Ms. Segal says, which is decentralization of power into the schools and the hands of the Principals. Distilling what successful school systems have done, Segal advocates new forms of oversight that do not clog up school systems and recommends giving principals more discretion over their school budgets as well as holding them accountable for job performance. She argues for "autonomy in exchange for performance accountability" as part of a bold, far-reaching plan for reclaiming our schools. Her conclusion is logical and convincing. Everyone who reads this book will find his or her perception of public school education changed forever. We cannot accept any longer that a generation of children has been abused by a system that is so full of greed and corruption without screaming "stop!" and "Your game is up!"

Segal reveals how systemic waste and fraud siphon millions of dollars from urban classrooms and shows how money is lost in systems that focus on process rather than on results, as well as how regulations established to curb waste and fraud provide perverse incentives for new forms of both. Anyone who is interested in school reform--this means anyone who pays taxes, is a parent or guardian of a child attending school, and/or who works toward a goal of establishing an education system that puts children first--must read this book. --

Lydia G. Segal is Associate Professor of Criminal Law and Public Administration at John Jay College of Criminal Justice, City University of New York.